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.

Filed Under: new zealand, three strikes

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  1. icon
    Hephaestus (profile), 26 Apr 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 ...

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