New Copyright law "unworkable and unreasonable"

NZCS generally steers clear of criticising laws, however in the case of Section 92a of the new Copyright (New Technologies) Amendment Bill we, like most others in the sector, have to make an exception.

In fact the problem is so large the entire ICT and Telecomms sector is now up in arms about it. So much so that an unprecedented joint Press Release has just been put out by the NZCS, Telecommunications Carriers' Forum, InternetNZ, the ISP Association, TUANZ, and Women in Technology about the new law (or for those that like acronyms, NZCS, TCF, INZ, ISPANZ, TUANZ and WIT!).

Section 92a states:

(1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

Now let's get one thing clear. Copyright owners absolutely have the right to protect their intellectual property, and NZCS and others are not for one second saying otherwise. To state it clearly: Copyright violation is a major problem, and we support moves to reduce it.

However to trample all over the rights of computer and internet users, and to place ISPs in the position of potentially having to be the policeman, judge, jury and executioner in what are often vague and unclear situations is completely unreasonable.

This is actually eerily similar to a situation where a power company would be forced to have a policy stating that they must cut the power off to a house, business, school or library (yes, they're included) if someone on the property used that electricity to do something illegal. I can't imagine that situation receiving a good reception, so why is this any different?

The answer is, it's not. These days Internet connectivity is essential. The Internet is used for banking, access to government services, shopping, communicating, and a host of other services and is regarded by many as an essential service.

And what's "reasonable"? What's "appropriate"? Who gets to decide what a "repeat infringer" is? Is this someone who has just been accused of copyright breach (because let's face it, there's quite a history of false accusations in this area) or is it someone who's been convicted? And if the latter, isn't the legal process the proper place to deal with this, rather than lumping it on service providers?

And what's to stop someone who finds themselves "terminated" then just signing with one of the multitudes of other ISPs in NZ, thereby rendering the section pretty much useless anyway?

The Act was well intentioned, however it's simply bad law. We implore the Government to halt this implementation of this section for the moment (it's not too late), and let's look at a more workable and reasonable solution after the election.

[UPDATE: Ernie at TUANZ has also commented here]