New Zealand Moves Forward With Three Strikes; Big Questions Left Unanswered

from the not-so-good dept

New Zealand has been working on putting in place a three strikes law which is only marginally better than the one that it originally tried to pass. Right now, it looks like the “new bill” is moving forward with little opposition, even though there are some serious unanswered questions. Reader Matt Perryman has written up a detailed look at some of the bigger issues, asking about things like the privacy issues and the costs put on ISPs. However, his final two points are perhaps the most important. First, he notes that no details have been released or discussed about this special “copyright tribunal” that will handle these cases, even though that’s pretty central to the whole deal:

You’re creating a copyright tribunal to handle all of these complaints, and yet we’ve heard exactly nothing about what this will entail, regarding standards of evidence and valid defenses….

The dilemma: I have a wifi hotspot in my home, attached to my internet account. It’s unsecured. A hacker or ne’er do well logs in to my hotspot, torrents a bunch of movies without my knowledge. Later I receive infringement notices and have to show up at the tribunal. I’m stunned, because I know nothing about it.

Is my defense of an unsecured wifi hotspot, combined with total ignorance of the matter, valid?

Change the parameters a little. My hotspot is secured by WEP, and a hacker cracks it (which is amazingly easy to do). Same scenario ensues. Is this a valid defense?

What about IP spoofing? What if someone frames me for infringement when I’ve not engaged in the activity? Is that a valid defense?

No matter what you feel the answers to the above questions are, the fact that this is not clear and has not been discussed with regards to New Zealand’s proposed law seems tremendously problematic. It leaves all sorts of questions on the table that could make the law incredibly bad. And the answers to those questions — no matter which way they go, raise questions about this law:

If these defenses are valid, then the copyright tribunal is redundant; anyone aware of these issues has so many plausible defenses that there is no way to prove infringement.

If these defenses are not valid, then the tribunal is a sham and a rubber-stamp for industry interests, because there is no way to prove your innocence in light of accusation.

His final point is that this bill would create a new class of criminals totally at the behest of an industry — which isn’t quite how things are supposed to work:

You’re criminalizing a non-criminal behavior based on exactly nothing of substance, and at the behest of a private industry.

I’m of the mindset that if you’re going to criminalize a behavior, you had best meet the burden of proof as to why that behavior is being outlawed.

Can the NZ MPs do that? If they can, they’re doing their best to hide their evidence. The industry’s own statistics have been called into question and ultimately they’ve been debunked.

So the obvious question: on what grounds are you justifying this?

Good questions — but somehow I doubt we’ll get any substantial answers from New Zealand MPs.

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Comments on “New Zealand Moves Forward With Three Strikes; Big Questions Left Unanswered”

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40 Comments
aguywhoneedstenbucks (profile) says:

Re: Re: Re:

I own the rights to some media. Would that give me carte blanch access to anything I wanted to download? On the same token, wouldn’t it give anyone the right to register with the copyright office then download to their heart’s content?

The point is that they won’t be able to say “media rights-holders”. They will have to carve out exceptions for every one of their little friends. Will it help? I don’t know, but at this point it certainly couldn’t hurt.

slander (profile) says:

Re: Re: Re: Re:

Minor details such as that can be dealt with by simply creating an industry-vetted organization, the Directorate Of Undersigned Communications Handlers Embodying the Brokerage of Artistic Goods and Services.

The aforementioned exceptions will apply only to members of that organization, and all membership applications will be thoroughly screened. Wouldn’t want the riff-raff getting in, now would we?

lfroen (profile) says:

All OK, except "ip spoofing"

You can’t spoof IP on TCP connection (you expect to get a reply, don’t you?). So can we finally stop using this bullshit argument?
Regarding “IP doesn’t identify a person” – license plate doesn’t identify driver either, but let’s see following case: your car get stolen at night and enter fatal hit-and-run accident. Your license plate is recorded, and – lo and behold – owner going to jail unless he succeed to prove theft.
So, back to “IP-to-owner issue”: IP does identify an owner. And unless owner proves that someone else used his IP – he bear full responsibility.

imallrightjack says:

Re: All OK, except "ip spoofing"

http://en.wikipedia.org/wiki/IP_address_spoofing
Not always true:
‘The poor implementation in many older operating systems and network devices, however, means that TCP sequence numbers can be predicted.’
Not that i know anything about it but i do find that usually anything to do with computers can be got round.

lfroen (profile) says:

Re: Re: All OK, except "ip spoofing"

Since you “Not that i know anything about it”, would you please STFU?
Yes, you can predict sequence number (in some OS’s), but you still can’t get answer, since target will send it to spoofed IP. Meaning – you can use it for DoS or man-in-the-middle attacks, but not for data transfer.

Christopher Weigel (profile) says:

Re: Re: Re: All OK, except "ip spoofing"

Or for… Sending copyrighted information, so long as you’re not overly concerned with confirming the connection. Downloading, not so much, but it wouldn’t be hard to mess with a tracker by jumping the “host” IP around.

In other words, simply because you can’t conceive of a way doesn’t mean there isn’t one.

abc gum says:

Re: All OK, except "ip spoofing"

“owner going to jail unless he succeed to prove theft.”
“And unless owner proves that someone else used his IP – he bear full responsibility.”

– What country are you from?
– Where I live, there is this presumed innocence thing. This may seem strange to you, but the accuser must present evidence which proves the guilt of the defendant. Weird huh.

Your claim about not being able to spoof an IP addr is quite silly. You even acknowledge the existence of man in the middle atacks and yet fail to imagine what could be done with same. Amazing, really.

Steve R. (profile) says:

IP Protection Duplicity

Both copyright and patents are a form of so-called “intellectual property”. Why is it that persons who infringe on copyright are being turned into criminals, but those who infringe on patents are not being subject to criminalization?

This is a clear example of the individual (who has virtually no legal clout)not having equivalent legal rights as the corporations. Our legal system, at least to my knowledge, is based on having a level playing field. So it copyright infringement is considered criminal than patent infringement should also be labeled as a criminal act.

Regretfully, our legal system in regards to so-called intellectual property is corrupt. An impoverished single-mother of special special needs children can be fined and arrested but Steve Jobs and Bill Gates can’t be. What a justice system!!

Chargone (profile) says:

Re: Huh?

no, we just have politicians. *sigh*
it should be noticed that this has not made the news yet.
well, not on the sites i keep track of.

which, to be fair, might have something to do with the major news places being owned by either the government or American interests, and me having been a bit swamped the last few days and thus not checked alternative sources

this will go good says:

ip spoofing

To capture, alter, and retransmit a
communication stream in a way that misleads the recipient. As used
by hackers, refers especially to altering TCP/IP packet source
addresses or other packet-header data in order to masquerade as a
trusted machine. This term has become very widespread and is
borderline techspeak.

PART I: Simple spoofing (Non blind)
———————————–

0. Introduction
0.1 What
0.2 For whom
0.3 Disclaimer
0.4 Licence

1. Short explanation of some words

2. Description of sourcecode
2.1 Source included
2.2 Programmer notes

3. TCP/IP (UDP) in an hazelnutshell

4. Non-blind spoofing
4.1 Know what you are doing
4.2 SYN flooding
4.3 Connection Killing
4.3.1 Using reset (RST)
4.3.2 Closing a connection (FIN)
4.3.3 Improving
4.4 Connection Hijacking
4.5 Other

5. The source code
……..
ya 3 strikes rules
as i see it were gong ot be able ot totally get rid of french culture on the net
next up is british and when the usa does it there next
IT WILL be fun also as ACTA sets in canada and the 20,000 dollar fines start rolling off and people cant pay and get 2.5 years in jail at a tax payer cost of about 100,000 per year.

Hephaestus (profile) says:

Re: Re: ip spoofing

IP spoofing only works if you are sending to an address and dont want or need a response. With Proxys, onion routing, VPN, open WiFi, and a whole host of other techniques it is very easy to hide your IP address. Do a google on proxy server and you get 19,200,000 links, VPN Server gets you 6,800,000 links, its impossible to stop infringement from a technical perspective. All I see this law in NZ doing is pushing it further under ground and causing new tools to be developed that are better at hiding who and where you are.

The unintended consequences of these laws will be a backlash against the music, and video industries. Globally more redBoxes, and netflix type organizations. Leading to an even faster decline in the entertainment industries profits. A rework of copyright and patent law done from a consumer perspective and not corporate lobbyist perspective.

Here are some interesting little tidbits of information, the redbox business model will work even if rental prices are 30 cents US per day. With better compression the netflix streaming model will work at $6.50 – $8.50 USD a month. Hulu can be gotten to from outside the US with just 5 minutes of work, the same goes for every other web site that hosts tv shows. WebLockers can only be tracked from the server and encrypted files can not be determined to be infringing unless decrypted.

The next couple years are going to be interesting …

NAMELESS.ONE says:

adlib furthar economic repurcussions

Ya know once this starts the economies around the world are really gonna get whacked.

A) Canada has 24 million net accounts. Lets just say people ignore then get hit with the fines of ACTA.
– the law states now that commercial infringement aka profiting = 20,000 dollar fine , ACTA make NON-COMMERCIAL no different.

B) those that get fined have that money removed from the economy as they pay the gov’t NOT the artists this fine, WHO may do as they wish with fine money. The most likely to do this type a stuff are already not well off and some may then resort to criminal behavior to make up for this.

C) if there is no difference to selling and not selling and i for instance have already been logged as having done more then a life sentence worth of infringement even if non commercial then you can only get life once and i might as well take a few jerks out along the way to prison.

D) Societies cost to house me for 2.5 years per music tune is valued at 250,000 $ PER music tune so a full album could run me a max fine of 280$,000 OR max time in jail of 28000 days ( over 76 years) This also removes me form a tax base however small i was BUT imagine that on a scale of a million people….

E) ALL isps in canada have been using DPI for some time and they do know what people have done and are up too. THere fore supporting ACTA means your just going to toss hundreds of thousands into jail OR make examples of those that embbarrass or make it tough on govt ( thus suppression of opposition and freedom of speech is achieved )

F) Stealing internet and access becomes a huge thing.
GO look at sides of your houses and why over 10 million homes in canada are insecure versus this. and BCE for example says they will not secure them cause it will cost them 200$ per home.

G)IP spoofing is damn funny and easy to do.

H)Sniffing data is also easy and even if encrypted if they never change passes and many dont you will be able to eventually crack it. The recent crck can mean you sniff and copy the data then use the unstable electricity to by pass the encryption. THIS is why its very serious to use multiple encryption.

I) these laws only furthar show (wait and see ) that it will increase criminal gangs selling the material to end users at cheaper then hollywood does or is willing to.

Oh and after my 3rd strike in canada ill just steal your net and when you get canceled ill go to the next until NO ONE has net access in my city.

YUP gonna get lots a people angry but ya know what BLAME your JAFFER LIKE MP for being bribed by a foreign govts wish to tax us all.

THAT’S RIGHT all politicians that take lobby money from hollywood or there associates are traitors to your country.

CYA France, UK and New zealand, YOUR all just CHINESE to me now….

Steve R. (profile) says:

Re: Re: Re: Parable of the broken window

Parable of the broken window

The money simply goes into another economic use. Instead of going to the artist who buys a car, the “pirate” saves the money an buys the car.

Furthermore, we continuously fail to ask the question of whether the artist is even entitled to the money. Compliance with copyright has become an extortion racket, where everyone who uses content is declared a “pirate”.

hxa says:

The laws don't make sense because they are not intended to

These ‘three-strikes’ laws are propaganda laws. Their only real purpose is to scare the public. The details of their implementation are confused, incomplete, and impractical because the intention is never really to carry them through in any significant number — if they were to do so they would suffer an enormous backlash.

How did the record industry’s legal campaign of suing people go? Rather badly. And what does anyone imagine would happen when the *government* starts cutting-off thousands of people from the internet? It is not going to happen, and if it did it would come to a fairly sharp end.

Hephaestus (profile) says:

Re: The laws don't make sense because they are not intended to

“These ‘three-strikes’ laws are propaganda laws. Their only real purpose is to scare the public. The details of their implementation are confused, incomplete, and impractical because the intention is never really to carry them through in any significant number — if they were to do so they would suffer an enormous backlash.”

Ageed. If we learned anything from the 35,000 law suits that the record labels filed, fear and intimidation dont work to curb infringement. If you believe the record labels numbers (which I dont) 20 – 30% of the population of the US infringes on copyright and 70% of south korea infringes. Where are we going to house all these eye patch wearing criminals?

Roy Baty says:

@ 5

The article isn’t talking about spoofing IPs on TCP connections.

It’s talking about this: http://dmca.cs.washington.edu and more specifically the inaccuracies of the methods that these companies are using to track file-sharers.

If you can see to it that a printer on a network gets accused of infringements, that causes severe doubt as to the accuracy of their detection methods.

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