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.