By Steven | February 24, 2009
You may have noticed that I didn’t join the blackout in protest against section 92A.
It’s not that I don’t have concerns about the law. As you can see from the post below, it doesn’t seem to me that it’s been well thought through. I’m open to the idea that it goes too far.
But “guilt by accusation”? There’s nothing in the law that requires that. Here’s section 92A:
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.
(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.
An ISP that simply terminated on the basis of two or three allegations would surely not be implementing its policy reasonably, and termination would be inappropriate. True, this provision is awfully vague (which may also raise Bill of Rights issues, actually). Yes, it gives quite a lot of wiggle room to ISPs (though they are not likely to try to implement it against their clients’ interests). But it does not require - or even permit - guilt by mere accusation. [Dean Knight has made the same point].
Some people are getting het up about the fact that an account may be terminated without the protections (and standards of evidence) available in a court. But is that so odd? Your phone company can cut you off for breaching its policies. Your employer can fire you for breaching policies. Your ISP probably has other policies reflected in its contract with you allowing it to terminate your account if you peddle kiddie porn, for example. If push comes to shove, you can take the issue to court. As you can do under section 92A. But the development of policies (even mandatory ones) that have real consequences for breach without any necessary court involvement is nothing new.
Throw in the new Telecommunication Carriers’ Forum draft on how this law is likely to work in practice and we move even further away from guilt by accusation. What this draft gives us is “innocence by denial”. Under this plan, a copyright holder who asserts breach triggers an “education notice” to the user, who can simply deny the breach by issuing a counter-notice and no further action needs to be taken by the ISP. Really. There is a provision in there saying that ISPs can, in their discretion, decide to take action if they think the denial process is being abused. But how many ISPs are going to do that?
The draft is worse than that, from the copyright holders’ point of view. A copyright holder has to pay a fee before the ISP even has to look into the allegation. So if a copyright holder can provide crystal clear evidence that a user is downloading files illegally, the ISP won’t even glance at it unless the holder can stump up with some dosh. I have some sympathy with the ISPs’ desire for cost recovery, but I’m not sure that any policy that allowed an ISP to overlook incontrovertible proof just because someone hasn’t paid it some money could be regarded as reasonable. (I’m not saying proof will always be incontravertible, I’m just mentioning the easy case for the purposes of argument).
Actually, that raises another question: where the hell do the copyright holders get their evidence that some particular person is infringing? Beats me. But I do note that the draft puts that evidential threshold pretty high.
Does this draft really comply with section 92A?
The copyright holders are proposing a slightly amended system - in which they get to look at the users’ reasons for denying infringement via their own resolution process, and if they end up still thinking there’s been a breach, the ISP has to accept that. But that doesn’t seem fair either [and, as someone has pointed out in the comments section, that comes closer to guilt by accusation].
I think any fair and reasonable system must involve a quick and fairly cheap disputes resolution body. And I note that we already have a Copyright Tribunal set up and functioning, though for some bizarre reason, all it does is rule on issues concerning licensing systems. I can’t help thinking that it would be a good idea to broaden its jurisdiction to include ISP copyright issues, set up a lower-tier fast-track mechanism for resolving the 98% of infringement claims that are slam dunks, and refer the tougher ones (eg where there’s a fair dealing issue) to the Copyright Tribunal.
[Update: credit to DPF, he did link to this post. He says he disagrees that section 92A isn’t guilt by association, but doesn’t explain why. On the other hand, he has written a lot on this issue, and you can see his thinking there.]
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