Family Holloway

Last week CFF Director Bronwyn Holloway-Smith participated in a debate on Section 92A. Here is Brenda Wallace‘s writeup: “the debate on section 92a, between Bronwyn Holloway-Smith (Creative Freedom Foundation), Ant Healey (APRA) and Technology Journalist, Pat Pilcher. View streaming on demand from tvnz Episode 2, 5 Feb 2009 (in chapter 3).”

The following is quoted from Brenda‘s writeup of the debate:

Some snippets transcribed for the hear+flashplayer impaired:

Quote

Moderator: Have you gone back to your members? because [Creative Freedom members include] APRA members who are really unhappy about this.
APRA:… We’re a big organisation .. of 6,000 members, of course they will have divergent opinions. We are governed by a board of composers, a board of directors who are composers. We have clear instructions about posistion to take

(he didn’t answer the question – did APRA consult their members or not?)

Quote

APRA: We must, we must not stand idly by and watch really core important rights simply be ignored
Moderator: But you’ve just had your best revenue year ever last year. You don’t seem to be suffering from this.
APRA: well, we are. If you look at the revenue streams that revolve around the revenue from CD sales, a small part of which goes to the composer, of course we are. I could give you those figures and the figures would be decimated.

…they’ve had their best revenue ever – but cd sales are down so this means we need to do something about the decimation of vinyl records magnetic tape CD sales.

CFF What we’re concerned about, and the artists we represent are concerned about is this law …. people labelled guilty until proven innocent; and that’s not somethat that artists want done in their name.
APRA: It simply won’t happen. having been part of the process..
Moderator: That’s a nice thought but I’ll need you to justify that statement
APRA: I don’t believe that that will be the case.
CFF: That’s leaving it up to ISPs and anyone but the courts to define, isn’t it? It’s nice to think that people will behave and not make false accusations
.. moment of silence.

They then spoke about the TCF draft code. It’s important to realise this is just a code to help ISPs cope with this law , and is not the law itself.

Adhering to the code won’t necesarily protect and ISPs from lawsuits from “rights holders” who do not agree with the TCF code.

(and an ISP” is anyone who provides internet to someone else. e.g. schools, libraries, cafes, flatmates sharing internet, and any employer who provides internet to their staff.)

Quote

APRA: The standard of evidence that will be required will be extremely high – at least as high if not higher that that would required by a civil or a criminal court.
Moderator: Then why not go through the courts?
APRA: Simply the government have put in place.. they have seen a problem and they’ve seen a solution to the problem. they’ve left it up to the ISPs and the rights holders to provide and answer and that’s what we’re trying to do.

Does anyone know of a successful copyright infringement + internet case in New Zealand? What percentage are successful? Have APRA in the past had a level of evidence that can stand up to court scrutiny? And how will we ensure they keep to a high level?

The MED FAQ, when speaking of notices for Section 92C says:

Quote

Q: Must the notice of infringement be in any particular form or contain specific information?
A: No, the notice of infringement needs to only provide the ISP with sufficient information for it to become aware that the material in question infringes copyright. In order to make it simpler for copyright owners to prepare a notice of infringement, a template for the notice will be prescribed in Regulations to the Copyright Act.

back to the debate:

Quote

APRA Sure, along the way peopele have dreamed up extreme situations. I don’t believe it’s reality, and i don’t belive it’s going to happen.
CFFIsn’t that a bit naive? It won’t just be New Zealanders making these accusations. These accusations can come from overseas, via organisations like the Church of Scientology, like the Recording Industry Assocaition of America (RIAA) who similarly have a reputation of making accusations that don’t hold up to scrutiny.
APRA: Look, if you’re going to take this conversation down to the level of the Church of Scientology and let the Church of Scientology to the processes that we want to put in place…
CFF That’s not the point.
Moderator The point is you can make an copyright claim and get something removed in circumstances where you can’t under defamation law

And many other motives. becuase it’s an ISP who is forced to the make the judgement, they very likely won’t be trained know the difference between free speech, fair dealing and copyright infringement – and even if they do they’d be taking a risk and making themselves liable for copyright infringement by not acting with a disconnection or content takedown. It’s a brave “ISP” that doesn’t disconnect apon accusation.

– Quoted from Brenda Wallace’s Blog under a Creative Commons license.

(crossposted from CreativeFreedom.org.nz)

After the EU rejected Guilt Upon Accusation laws saying that they were against “a fair balance between various fundamental rights” and the UK rejected them due to “impracticalities and complexities” it’s now Germany standing up for fundamental rights that National’s Steven Joyce and Chris Finlayson refuse to recognise. Germany’s Secretary of Justice said “I don’t think that [Guilt Upon Accusation] is a fitting model for Germany or even Europe. Preventing someone from accessing the Internet seems like a completely unreasonable punishment to me. It would be highly problematic due to both constitutional and political aspects.”. If you haven’t already please contact National’s Steven Joyce and Chris Finlayson about this law that they are allowing into New Zealand.

(crossposted from CreativeFreedom.org.nz)

CFF Director Bronwyn Holloway-Smith has just been in a panel discussion hosted by Russell Brown with fellow participants Anthony Healey from APRA and journalist Pat Pilcher. The topic was Section 92A and todays TCF draft that tries to manage this law. Media7 is on Freeview TVNZ 7 on Thursdays at 9:10PM, Friday at 12:10PM Saturdays 9.10PM and Tuesdays at 12:10PM. It also appears on YouTube (presumably video will appear there after Thursdays screening). In other news Matthew Holloway is presenting in Auckland at meetup.co.nz about CFF, Art, and Section 92A. It’s a free so come along and learn what about you can do.

(crossposted from CreativeFreedom.org.nz)

If Section 92A comes into effect then all ISPs must follow a policy of disconnecting people before a trial based on accusations of copyright infringement. One of the largest groups of ISPs, the TCF, released their draft code of practice today asking for feedback. Here’s the press release, the homepage and the policy itself (PDF, 300KB). A lot of competing interests will be vying to affect this TCF draft, and so we should all prepare to have our say. This code of practice cannot undo the problems of Section 92A: that internet connections are terminated based on accusations of copyright infringement before a trial and before any evidence has been held up to court scrutiny, although to be fair this draft does try to manage this situation. It asks ISPs to measure “evidence that would be acceptable to a court”, but remember that “the definition of an Internet Service Provider goes much further than the traditional ISP [...] includes schools, universities, libraries, businesses, government departments and any other organisation that provides internet services.” and all of these organisations are now expected to replace a court and understand copyright law such as copyright between businesses and between the arts and free speech. The TCF should be applauded for trying to manage this appalling law, and we’re glad to see the sections on Vulnerable Customers and Essential Service Providers (page 14). Of particular interest is Section F (pages 31-33) a proposed amendment currently not in the code. This proposed ammendment seems to indicate that a single accusation may reveal your personal contact details, however more analysis is yet to come. Get reading people and post your analysis in the forum or in email to us.

UPDATE: InternetNZ’s response to the TCF draft policy

(crossposted from CreativeFreedom.org.nz)

The Indie Band Survival Guide explores how bands can survive and flourish on their own without the help of a major recording deal. The guide recommends using Creative Commons licences to spread your music around, with reference to Tim O’Reilly’s famous quote “Obscurity is a far greater threat to authors and creative artists than piracy.” For authors the Australia Council’s have released The writer’s guide to making a digital living about the business of “writing, collaboration, copyright, marketing and distribution and business models, and how to develop projects from concept to commerical takeup. It includes case studies from Australia’s rising generation of poets, novelists, screenwriters, games writers and producers who are embracing new media”

(crossposted from CreativeFreedom.org.nz)

Did you know that the song Happy Birthday is copyrighted and that the copyright is currently owned and actively enforced by Time Warner? Did you know that if you sing any copyrighted song: …at a place open to the public…or among a substantial number of people who are not family or friends…you are involved in a public performance of that work? Did you know an unauthorized public performance is a form of copyright infringement? Read more at Unhappy Birthday.com

UPDATE: the EFF have announced that they’re about to take action against YouTube and Warner Brothers to defend a girl who sung Winter Wonderland (1934). EFF say: These [copyright infringement detection systems] are still primitive and unable to distinguish a transformative remix from copyright infringement. So unless they leave lots of breathing room for remixed content, these filters end up sideswiping lots of fair uses. And that’s exactly what has happened these past few weeks”.

(above text quoted from unhappybirthday.com)

(crossposted from CreativeFreedom.org.nz)

Last October TradeMe accused a rival auction site Lixtor.co.nz of copyright infringement, saying that Lixtor’s Terms and Conditions page and Privacy Policy page were theirs. In their letter TradeMe asserted that “there can be no doubt that they have been produced by copying TradeMe’s Terms and Conditions, and Privacy Policy.” In response Lixtor’s Henry Aung denied the claims, saying that “I think we cannot run the site without proper Terms and Conditions and Privacy Policy. This will prevent users from knowing what they are signing up to and which in turn discourage people from signing up to Lixtor.” Under Section 92 could an ISP decide whether to remove these necessary webpages? More inside…

So, what’s the harm? As Henry Aung says these documents form a legal protection and without them Lixtor would stop trading. The company would lose revenue until it could replace them and trading may cease for days.

One important point is that lawyers often cut-and-paste together legal documents. Introducing variation for the sake of creating a unique work for each client is not the goal, and by using time tested snippets a legal document is more robust. Copyright is used by many sectors of society and in this case unnecessary deviation may be considered harmful.

MED’s advice to website hosting companies is:

“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.”

(funny that MED don’t even say allegedly infringing)

So with the threat of copyright infringement an ISP must promptly decide whether it’s infringing or not.

Lixtor responded to TradeMe by saying that the Privacy Policy was infact based on the TRUSTe Model Privacy Agreement, and in subsequent letters TradeMe did not take issue with the Privacy Policy.

TradeMe still claim that the Terms and Conditions document was taken from their site, but TradeMe has not pursued this further.

Now this article hasn’t been written to pass judgment on the merits of Lixtor or TradeMe, both are very good trading sites. This is however yet another example of how ISPs will have great difficulty deciding copyright infringement under ‘Section 92′.

Different sectors of society have different approaches to copyright and reuse, and the legal sector is quite different to that of the creative.

(crossposted from CreativeFreedom.org.nz)

A story at TechDirt.com covers the history of that iconic Obama poster and how it was based on a photograph by Mannie Garcia who was on assignment to Washington by Associated Press (AP). This new work built upon an existing photo and there’s a fine line between derivative works (which infringe copyright) and transformative works (which do not infringe copyright). Right now this Obama poster is in a state of legal limbo. If you view the TechDirt.com article you are of course downloading material that may or may not be legal. Anyone interested in copyright may recall that AP – who may own the Obama photo – have demanded payment for text quotations of 5 words or more. If you quote between 5-25 words from one of their news articles they demand payment of (US) $12.50 and the prices ascend from there. Associated Press have issued copyright takedown requests on many blogs, for example a 57 word quote where 47 of those words were quoting former-President Bush. Although the target of Section 92 was probably music and movies we’ve seen that copyright law is used by many other groups and soon untrained ISPs may be asked to judge copyright infringement. I wonder which side they will err on?