POLITICS 20 February 2009, 2:26PM
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Principal of Entertainment Law Firm, Dominion Law Chris Hocquard has this to contribute to the ongoing debate over the implementation of a Code of Conduct for ISPs relating to repeat infringers of copyright works.
``At least 85% of all digital traffic in music involves illegal downloading and file sharing. Every one of those transactions involves a data transfer through an ISP.
``This law changes merely requires the ISPs to act responsibly and to help deal with a problem that is out of control. The ISPs control the traffic and benefit from sale of data, the new law just recognises that and puts the responsibility in the hands of the people who can actually make a difference.
``Requiring the ISP to notify a customer that their activity appears to be infringing, not once but many times and, only as a final resort, disconnecting that person is hardly an attack on a customer’s civil rights.
``It’s very difficult to understand the hysteria being generated by such a simple solution.
``The Government has acted calmly and reasonably and has allowed the ISPs and the other interested parties the chance to develop a workable Code of Practice. This is clearly the best course and should soon be completed,’’ he says.
``It is regrettable that certain minority interests are distorting the situation. It really does make you stop and wonder, what is it they are actually trying to protect, their customers or their income streams. If you have a business model based on the illegal trafficking of other peoples’ property then perhaps it is time to revisit that model.
Chris is New Zealand’s leading Music lawyer. His firm Dominion Law represents many artists and businesses working in the New Zealand Music and other Creative Industries including many household names. He is also the deputy Chairman of the New Zealand Music Commission, the Chairman of bFM, the founder of amplifier.co.nz, New Zealand’s longest running music website and a Director of DRM, New Zealand largest digital content aggregator. He is uniquely placed to see the devastating effect that digital piracy is having on the Creative Industries
Contact details:
Chris Hocquard
09 638 5863 or 021 418365
COMMENTS
There are a number of dubious claims in this article.
- ISPs do not benefit from increased traffic. Quite the contrary, most ISPs charge customers a fixed amount per month, so extra traffic winds up costing them money in the long term.
- The assertion that illegal file transfers account for 85% of all traffic is, at best, unsubstantiated. It sounds suspiciously similar to typical figures for file sharing. Some file sharing is infringing, some is not; please cite a survey that explains how it distinguishes infringing from non-infringing sharing.
- The "minority interests" is that of all Internet users in New Zealand. Last I heard, that was something like 75% of the population, but I stand ready to be corrected on the exact number.
To claim that the law "merely requires ISPs to act responsibly" is highly disingenuous as it completely overlooks the effective impact on users: an ISP will treat allegations as if proven because it will be cheaper and less risky for them to do so:
- The cost of actually evaluating every complaint is prohibitive; most ISPs will install automated systems and rational judgement will be completely bypassed.
- If the ISP does take the time to evaluate a complaint and, perchance, rejects it, they face the risk of being called to justify that evaluation in a real court. Even if the court finds in their favour, it will cost them tens of thousands of dollars in legal fees.
- In the unlikely event that a customer takes them to court for unjustified termination, automated termination is logically their best option even if the customer later wins in court.
And this is even worse when you consider that overseas experience has been that a significant proportion of "copyright infringement notices" are completely bogus cyberlaw.org.uk/2008/07/24/viacom-ignores-promise-sends-bogus-takedowns-to-youtube/.
Lastly, it should be noted that copyright lawyers have just as much a vested interest as ISPs, and they have the advantage of operating within their field of expertese while conducting this campaign.
Statement of interest: I've worked for an ISP for 2 years, but I've been an internet user for 20.
And regarding "... notify a customer that their activity appears to be infringing, not once but many times ...":
- The "many times" is the "repeat" mentioned in the act, which is generally interpreted by lawyers as "thrice"; and
- In practical terms, it is the internet connection, not the person who uses it, that gets a black mark. If their wireless connection gets hijacked, they may not know anything until they get a report from the ISP.
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