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.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    icon
    The eejit (profile), Apr 26th, 2010 @ 3:00am

    Perhaps we should use a 'scorched earth' technique and get someone to IP spoof all the HQs of the recording industry idiots and MPs. It'll be fun to see what happens next.

     

    reply to this | link to this | view in thread ]

  2.  
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    awd, Apr 26th, 2010 @ 3:14am

    Since the UK passed the Digital Economy Thing, then they'll feel totally justified in passing anything that looks fairly similar and is at most equally bad.

     

    reply to this | link to this | view in thread ]

  3.  
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    slander (profile), Apr 26th, 2010 @ 3:28am

    Re:

    Then the New Zealand government will simply amend the law declaring immunity-from-prosecution to MPs and media rights-holders. There, that solves that problem...

     

    reply to this | link to this | view in thread ]

  4.  
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    aguywhoneedstenbucks (profile), Apr 26th, 2010 @ 4:56am

    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.

     

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  5.  
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    lfroen (profile), Apr 26th, 2010 @ 5:14am

    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.

     

    reply to this | link to this | view in thread ]

  6.  
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    Steve R. (profile), Apr 26th, 2010 @ 5:16am

    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!!

     

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  7.  
    identicon
    Mentor's Last word, Apr 26th, 2010 @ 5:17am

    bigger dilema for you all

    hax0r just hacks it secured or not , there is no security
    and were going to do it now just cause we can

    and you can blame your gov't and lobbying and hollywood

     

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  8.  
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    slander (profile), Apr 26th, 2010 @ 5:18am

    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?

     

    reply to this | link to this | view in thread ]

  9.  
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    aguywhoneedstenbucks (profile), Apr 26th, 2010 @ 5:45am

    Re: Re: Re: Re:

    Yeah, but it will cause them a bit of headache. Anything that causes them anguish is great in my book.

     

    reply to this | link to this | view in thread ]

  10.  
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    imallrightjack, Apr 26th, 2010 @ 5:54am

    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.

     

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  11.  
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    NullOp, Apr 26th, 2010 @ 6:21am

    Huh?

    You'd think the Kiwi's would have better sense than to try passing a three-strikes.... Guess they've been out of the mainstream gene-pool too long.

     

    reply to this | link to this | view in thread ]

  12.  
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    lfroen (profile), Apr 26th, 2010 @ 6:25am

    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.

     

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  13.  
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    lfroen (profile), Apr 26th, 2010 @ 6:29am

    Re: IP Protection Duplicity

    Maybe because patents are so bullshit that nobody give a shit about them anymore?
    US have patents on stuff like one-click-something, for-loops, email, mp3's, almost everything in ASIC and so on. Should we put all engineers in jail for not knowing about some bogus patent USPO approved?

     

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  14.  
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    John, Apr 26th, 2010 @ 6:35am

    Re: All OK, except "ip spoofing"

    Well hopefully you'd notice your car missing. Someone using your internet - not so much.

     

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  15.  
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    this will go good, Apr 26th, 2010 @ 6:38am

    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.

     

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  16.  
    identicon
    NAMELESS.ONE, Apr 26th, 2010 @ 6:58am

    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....

     

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  17.  
    identicon
    Anonymous Coward, Apr 26th, 2010 @ 7:01am

    all this dances around the basic issue: piracy is running rampant, and takes money out of the economy. the masnick knows this from business school, but he wont address that issue.

     

    reply to this | link to this | view in thread ]

  18.  
    identicon
    Anonymous Coward, Apr 26th, 2010 @ 7:13am

    Re:

    "and takes money out of the economy"

    I don't think you know how an economy works.

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, Apr 26th, 2010 @ 7:15am

    Re: Re:

    well now. rather than just being a dismissive git, why not explain why i am wrong?

     

    reply to this | link to this | view in thread ]

  20.  
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    Steve R. (profile), Apr 26th, 2010 @ 7:31am

    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".

     

    reply to this | link to this | view in thread ]

  21.  
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    hxa, Apr 26th, 2010 @ 7:38am

    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.

     

    reply to this | link to this | view in thread ]

  22.  
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    lfroen (profile), Apr 26th, 2010 @ 7:47am

    Re: ip spoofing

    As I say before - if you have no idea on subject - STFU.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    Anonymous Coward, Apr 26th, 2010 @ 8:50am

    Re: Re: Re:

    How about you try to explain how you're right? You throw out opinion as if it's fact.

     

    reply to this | link to this | view in thread ]

  24.  
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    Hephaestus (profile), Apr 26th, 2010 @ 8:55am

    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 ...

     

    reply to this | link to this | view in thread ]

  25.  
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    Hephaestus (profile), Apr 26th, 2010 @ 9:06am

    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?

     

    reply to this | link to this | view in thread ]

  26.  
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    Anonymous Coward, Apr 26th, 2010 @ 9:34am

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

    100% of everyone infringes on some kind of content, every single day.

     

    reply to this | link to this | view in thread ]

  27.  
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    Christopher Weigel (profile), Apr 26th, 2010 @ 11:05am

    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.

     

    reply to this | link to this | view in thread ]

  28.  
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    Christopher Weigel (profile), Apr 26th, 2010 @ 11:07am

    Re: Re: ip spoofing

    Ok, cite your counterevidence or STFU. Because otherwise you're absolutely worse.

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    Anonymous Coward, Apr 26th, 2010 @ 12:10pm

    Re: Re: Re: Re: Re:

    Your book is about fair use and right to privacy?

     

    reply to this | link to this | view in thread ]

  30.  
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    Roy Baty, Apr 26th, 2010 @ 2:52pm

    @ 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.

     

    reply to this | link to this | view in thread ]

  31.  
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    Dementia (profile), Apr 26th, 2010 @ 3:08pm

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

    Here's a better idea, since someone is actively trying to discuss a point YOU made, how about responding in a somewhat respectful manner, otherwise YOU STFU.

     

    reply to this | link to this | view in thread ]

  32.  
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    Anonymous Coward, Apr 26th, 2010 @ 3:55pm

    Re: Re: Re: Re:

    D.O.U.C.H.E.B.A.G.S. Nice.

     

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  33.  
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    Any Mouse, Apr 26th, 2010 @ 3:59pm

    Re: Re: IP Protection Duplicity

    Yes, let's single out the US, because they're the only ones with BS patents. Right. Thanks for playing.

     

    reply to this | link to this | view in thread ]

  34.  
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    abc gum, Apr 26th, 2010 @ 4:01pm

    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.

     

    reply to this | link to this | view in thread ]

  35.  
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    abc gum, Apr 26th, 2010 @ 4:08pm

    Re:

    "takes money out of the economy."

    And where did this money go ? Since it did not exist to begin with.

     

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  36.  
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    abc gum, Apr 26th, 2010 @ 4:10pm

    Re: @ 5

    I doubt you will get a rational response with actual technical details to discuss.

     

    reply to this | link to this | view in thread ]

  37.  
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    Chargone (profile), Apr 26th, 2010 @ 4:45pm

    Re:

    depressingly likely.

     

    reply to this | link to this | view in thread ]

  38.  
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    Chargone (profile), Apr 26th, 2010 @ 4:49pm

    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

     

    reply to this | link to this | view in thread ]

  39.  
    identicon
    Anonymous Coward, Apr 26th, 2010 @ 5:26pm

    Re: Re: Re:

    I don't explain things to trolls who are dismissive of every counter-argument made.

     

    reply to this | link to this | view in thread ]


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