23 February 2009

Section 92A: Shades of Grey

Given the state of my brethren blogs, I am reluctantly forced to state my views on this debate. And I do so saying that my views are somewhat raw and ambivalent. First, I'm someone who supports the protection of human rights and due process being observed. I therefore have some sympathy for a cause which is opposing a measure on the basis that it is "guilt by accusation". But, secondly, I'm not convinced the section is nearly as grave as is being claimed and am worried that this campaign is a faux protest. As part of a broader package addressing (removing?) ISP liability for copyright, section 92A requires ISPs to terminate connections of repeat copyright infringers:
92A Internet service provider must have policy for terminating accounts of repeat infringers (1) An Internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that Internet service provider of a repeat infringer.

Ok. That makes sense. We have a copyright regime, which makes illegal to infringe copyright in some circumstances. Section 92A requires those who are partly complicit in breaches to honour and enforce those rules. Some might argue the Rule of Law requires the enforcement of the law. Does section 92A amount to guilt by accusation? Not really. It's not the most elegant drafting but it seems to me that the power to terminate can only properly be exercised where repeat infringement has been estalished. First, there is only the jurisdiction to terminate where copyright has been infringed unlawfully - if ISPs terminate where that is not the case, then they are exercising ultra vires this power. (And, it's likel that that relatively "hard-edged" judgement will be scrutinised carefully by any reviewing court or authority, if it got to that point.) Secondly, the section makes it clear that termination is only permissible "in appropriate circumstances". There's no flesh on that but it seems reasonable to expect that: (a) terminating where there is a genuinely disputed infringement clearly wouldn't be appropriate; (b) even if there has been repeat infringement, some compelling circumstances mean termination won't be the proper approach. (Those of us working in the state sector are used to terms like "appropriate" and "reasonable"; these terms allow for the flexible, case-by-case evaluation of circumstances, rather than the rigid application of fixed rules which often bring injustice.) And, a draft industry Code has been prepared. Amongst other things, it explicitly states that disputed breaches cannot form the basis of any of the 3 strikes (within 18 months) and you're out regime. It's legitimate, I think, to have regard to this when assessing the impact of the regime. Remember, we have regimes which are entirely self-regulatory (eg Press Council). Let's judge the regime holistically. As a drafting approach, I might have preferred that the Code be adopted in the form of binding regulations or that the Act itself provide some guiding principles about the reach and application of section 92A. But is the present law, as it is likely to be applied, a breach of people's human rights or due process rights? I'm not convinced it is. We're not dealing with the imposition of criminal sanctions. And the operation of the regime looks likely to be more circumscribed than the opponents suggest. Hence, I'm not blacked out. I reiterate my views are still in a state of genesis - and I'm open to persuasion. But from the research and thinking I'm done so far, I need some compelling arguments provided the other way. Oh. "Faux" protest? Why do I think that? It don't think this is really about the section 92A enforcement mechanism. I think the real cause for the complaint from the opponents is a fundamental atheism about copyright. They don't believe in copyright. I'm not a copyright guru. I'm happy to have the debate about whether those copyright concepts continue to be appropriate. But that's not the marquee message of this campaign. It's complaint is the about the method of enforcing those rules.


Anonymous said...

I'm making no substantive posts today- being blacked out and all. But, I'll be sure to respond tommorow- I tend to agree that for many of the anti-92a brigade copyright is indeed antithesis to their views. Having met with their opposition around other matters I know pretty clearly which camp they fall into. However, given the breadth of opposition to this Act- literally from all ends of the various political spectra I do not think that the protest can be written off as a fundamental opposition to copyright. More from me tommorow.

Graeme Edgeler said...

Every time I've gone back and read s 92A I've thought the same thing.

Anonymous said...

As a law student and computer programmer perhaps I can offer a unique perspective.

Sure, the power to terminate can only be exercised where repeat infringement has been established. But you must understand what it is an ISP will be forced to look for when implementing the s92a amendment.

They will be looking specifically for file sharing through clients such as bittorrent. All the ISP sees is huge traffic in and out. There is no actual way for an ISP to flag copywrited material from legit material (such BBC programming, which uses bittorrent as a means of delivery), anyone using bittorrent or file sharing clients legitimately will be flagged as copywrite criminals.

Eddie said...

Dean, the guilt by accusation concern comes in part, I think, from the approach that has been taken by RIANZ and APRA. This was, at least initially, that their judgment of infringement should be taken as evidence of a breach of the Act. This essentially would mean that the copyright holder would have the ability to get someone disconnected simply through a (presumably at least partially substantiated) complaint to an ISP. The concern that things might work this way aren't unfounded when one considers the takedown provisions in the American Digital Millenium Copyright Act. Standard practice with this Act has been for hosting companies to take down content as soon as a complaint from the copyright holder has been recieved. (to make sure they come within liability safe harbours). Effectively, in this regime, accusation has become guilt. This is obviously much worse if the remedy is disconnection rather than takedown.

You're right that a draft industry code has been drafted. But until the 'faux' protest occurred, RIANZ and APRA were saying that the Code was totally unacceptable, and that they wanted to be able to judge whether or not an infringement had taken place. I think they've since changed their mind.

I think you're right that the drafting itself doesn't raise the concerns that have been shouted about (which are exaggerated, I agree, but hey - its lobbying), but when RIANZ and APRA's approaches, and the DCMA precedent, are taken into account, the concerns aren't at all unreasonable.

Anonymous said...

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Course Outline

Lord Justice Lawton in Maxwell v Department of Trade and Industry [1974] 2 All ER 122 said:

"From time to time ... lawyers and judges have tried to define what constitutes fairness. Like defining an elephant, it is not easy to do, although fairness in practice has the elephantine quality of being easy to recognise. As a result of these efforts a word in common usage has acquired the trappings of legalism: 'acting fairly' has become 'acting in accordance with the rules of natural justice', and on occasion has been dressed up with Latin tags. This phrase in my opinion serves no useful purpose and in recent years it has encouraged lawyers to try to put those who hold inquiries into legal straitjackets.... For the purposes of my judgment I intend to ask myself this simple question: did the [decision-maker] act fairly towards the plaintiff?"

This course examines the elephantine concept of fairness in the law, along with other contemporary legal issues.

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