So what happened to drag me away from the keyboard?

• I got a dog (using the same rule as cats – see other blog)
• I helped run a BarCamp on Open Government
• I did a couple of other projects that I can’t link to or talk too much about
• I had bronchitis (been a pretty crappy winter all around, health-wise)
• I was accepted as an exhibitor in the Kapiti Arts Trail this weekend (#91)
• (I’m sure there was some other stuff)
• Oh yeah, I signed up on Twitter.

That last is the big one, really, as it chews up the most time. I have barely looked at RSS since April, and have only made one post to my family blog. It’s really quite fascinating to me (10K tweets later) and not a little frightening. I’m following most of the people I used to use RSS for, but now it’s in real time.

So, what’s hauled me back to the keyboard? ACTA – the Anti-Counterfeiting Trade Agreement – you may remember that I’ve blogged on this before. Well, it’s just entered its next round, in Korea, that well-known home of freedom and civil liberties (and the first country in the world to pass a 3 strikes law and implement it).

So, wassup with ACTA? For background, I’d like to point you to a recording of me discussing ACTA with Kim Hill on National Radio recently. Very pleased with the event and it’s now very timely, as ACTA has reared up again.

Those playing at home will remember that I’ve discussed the “intellectual property” aspect of ACTA before, and the fact that it’s being negotiated so secretly, more secretly than any other “trade treaty”. Long time players will also note that, in my submission to MED in June last year, I said (in para 17):

Further, the scarce official information available about ACTA would appear to indicate that it was intended to harmonize the enforcement of existing IPRs. However, the only current approach to a harmonized global concept of IP is occurring through WIPO, and ACTA appears to seek to operate independently of WIPO. There seems to be a fatal disconnect here – how can you harmonize enforcement if you don’t first harmonize the definition of infringements?

So now they’re seriously talking about this area and how they want to do it.

Michael Geist has broken the story and Cory Doctorow has broached it to the BoingBoing community. Neither of them appear to have actual text, but quote sources who say the draft text is modelled on the US-South Korea free trade agreement.

Geist outlines five issues:

1. Baseline obligations inspired by Article 41 of the TRIPs which focuses on the enforcement of intellectual property.
2. A requirement to establish third-party liability for copyright infringement.
3. Restrictions on limitations to 3rd party liability (ie. limited safe harbour rules for ISPs).  Notice-and-takedown, which is not currently the law in Canada nor a requirement under WIPO, would also be an ACTA requirement.
4. Anti-circumvention legislation that establishes a WIPO+ model by adopting both the WIPO Internet Treaties and the language currently found in U.S. free trade agreements that go beyond the WIPO treaty requirements.
5. Rights Management provisions, also modeled on U.S. free trade treaty language

Doctorow’s language is a little blunter – he notes that ISPs will have to proactively police copyright on user-contributed material, that ISPs will have to cut off Internet access of accused copyright infringers or face liability, that the whole world must adopt US style notice-and-takedown rules without evidence of infringing copyright, and that there will be mandatory prohibitions on breaking DRM.

We can’t confirm or deny what is in the actual draft because we don’t have a copy. The US administration wrote this chapter of the draft but is still regarding ACTA as a matter of national security. They recently let 42 individuals see a draft text, but only 4 were from what we regard as “civil society”. The rest were big corporates. This, the Obama Administration calls “transparency” and consultation. To be fair, Bush’s administration was worse, but this is not what we expect from a leader who campaigned on “change”, “hope” and “yes, we can”.

The New Zealand government is no better. Our officials say:

The countries participating in the development of ACTA have agreed that general information about ACTA’s objectives and the negotiating process should be made public. In that regard, MED has provided a range of relevant information about ACTA on its website. However, ACTA participants have also agreed that information relating to formal negotiating positions of governments should be protected, as is the standard practice in international treaty negotiations. It is in this context that we are unable to reiease many of the items you request.

First point – it is not the standard practice – the WTO Doha Round, the Free Trade Area of the Americas, World Health Organisation, WIPO – all publish the texts and proceedings as they go.

Secondly, the material published by all nations, including the Ministry of Economic Development is contextless spin, rather than substantive reporting of negotiations. “General information” is a kind way of putting it – “We’re doing something that will affect all of you but we’re not going to tell you until we’ve done it” is more accurate.

What is hardest to understand is how the governments involved – United States, Switzerland, Japan, Australia, the Republic of Korea, New Zealand, Mexico, Jordan, Morocco, Singapore, the United Arab Emirates, Canada and the European Union – can justify this secrecy in the face of domestic freedom of information laws, pledges of transparency and even the concept of democracy – government of the people, for the people and by the people.

It’s going to get worse before it gets better, and individual protests are going to be little waves crashing against the rocks of government indifference.  The proponents of this type of action have money, power and the ears of their legislators – we have our spirits, our wills and our need to be free. To make sure that’s enough, we need to join together and use our collective voice. In New Zealand, I recommend the Creative Freedom Foundation, InternetNZ and the NZ Open Source Society, all of whom have expressed their concerns to government previously. Elsewhere the Electronic Frontier Foundation, Knowledge Ecology International, even your local Pirate Party and the like are carrying the flag.

The proponents of ACTA say it’s about protecting the property of the content creators, letting them earn a living, that opponents  want to steal the food from the mouths of artists and their children. They’ve persuaded (or coerced) some artists and writers to speak up in this matter, to plead their cause. But the real blocks to artists, writers and musicians earning their fair share of income are the publishers themselves, with iniquitous contracts, onerous debts and dubious expenses. All the publishers are trying to protect is a dying business model which even now is still earning them billions each year.

Copyright isn’t about property – it’s about knowledge. It’s a social contract between the creator and the receiver (I won’t say “consumer” because knowledge isn’t consumed; it’s shared) and protects both. Publishers have always owned the gate to knowledge. The Internet and digital technology changes that completely. We’re all publishers now.

In a knowledge economy, you’re not buying and selling knowledge, just as you’re not buying and selling cash in a cash economy. In a knowledge economy, knowledge is the currency used to obtain something from the receiver – attention, loyalty, or something else  - something of value to both parties. It’s a different market model from the industrial one we grew up with of few producers, scarce product and many consumers. Product is no longer scarce, nor can it be made artificially so. The old model is broken, yet the old guard is trying to hamstring the new for as long as possible.

Google ACTA, learn what it’s about and what it’s claimed to be about. Wake up your media who are strangely silent on this matter and make them report it, if only to report your protest. Contact your elected representatives and make them aware that you don’t want this, that you won’t stand for it and that you expect them to represent your will, not the will of Hollywood and the recording industry, the pharmaceutical industry and the big broadcasters, who all stand to make more money by locking in our choices in what we can do with information.

Don’t just sit there – DO something!

On Torrentfreak there is a report of an EU vote (481 in favour, 25 against and 21 abstentions) to accept a report about fundamental freedoms on the Internet.

For the third time in a year the European Parliament has spoken out against tougher anti-piracy legislation that would allow alleged file-sharers to be disconnected from the Internet based on evidence from anti-piracy lobby groups. Instead, they chose to protect rights and freedoms of Internet users.

Apparently, the French are not amused.

The report and (press release) contains lots of “whereas’s” and “having regard to’s ” but is essentially a “hands off!” to individual governments. It’s not a bad draft for that ever-phantom “Internet Bill of Rights” actually, and worth the read.

So, Germany has said no, the UK has backed off, Ireland’s action is a) voluntary, b) restricted to one ISP and c) likely to disappear as it was contingent on all the other Irish ISPs coming on board, which they declined to do, the EU has several times said no (three times in the last year, the press release says) and AT&T and Comcast in the US have both denied doing deals with the RIAA, as was reported last week. Oh, and New Zealand blocked it as well. Eventually.

Where does that leave the French? They’re not known for giving a franc about what the rest of Europe thinks, but I can’t see even a massive ego like Sarkozy wanting to jeopardize trade links just to push this through. They were supposed to be the precedent-setting vanguard for graduated response in Europe, just as we were for the English speaking world, and now they stand alone, up un creek sans le paddle, or even much l’eau.

Prime Minister John Key has announced that the government will throw out the controversial Section 92A of the Copyright Amendment (New Technologies) Act and start again.

Justice minister Simon Power will now meet with officials and rewrite the section of the Act from the ground up.

No timeframe has been set for whatever clause will replace Section 92A.

Let’s hope we can do it right this time.

I’ve mentioned Baysting before, with reference to the ‘80% of music downloads are illegal‘ rubbish. Here is an email he sent out today to APRA members:

From: noreply@apra.co.nz
Date: March 17, 2009 12:39:00 PM GMT+13:00
To: [redacted by me]
Subject: The New Copyright Provisions

Members Bulletin

The New Copyright Provisions

The New Copyright Provisions

SONGWRITERS AND THE NEW COPYRIGHT PROVISIONS

“The internet must not become a high-tech Wild West, a lawless zone where outlaws can pillage works with abandon or, worse, trade in them in total impunity.” So said French President Sarkozy in 2007 introducing strict new law around ISPs and disconnection of copyright infringers.

Do you think the new Copyright legislation will protect your future income? Two events from last week will have a significant effect on your business as a songwriter or composer.

One is the progress on the code of practice with ISPs, now in its final stages of negotiation and expected to be adopted by most ISPs this month. The code will define how well your music is protected and whether you can earn money from it in the digital environment.

The other event is the emergence in Britain of a group of high profile songwriters standing up for the rights of creators against ISPs and those who think music should be free. The Featured Artists Coalition includes artists like Radiohead, Annie Lennox, Robbie Williams, Billy Bragg, Soul II Soul etc.* The website is: http://www.featuredartistscoalition.com/

A statement from the FAC released this week says: “Google is hoping to bring to heel the last remaining outpost of resistance to the idea that music on the internet should be free – the creators of that music, the artists themselves. . . we want all artists to have more control of their music.”

This is the same fight we face in NZ. APRA/AMCOS believes that the new copyright provisions will protect the rights of songwriters and composers. But without a reasonable code – which discourages illegal file-sharing – creators will not have an effective digital business model.

This issue is particularly concerning for Maori members who want protection for their Waiata and traditional cultural practices. With no government involvement, there is no guarantee of protection.

This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.

Songwriters deserve to be recompensed for their music and for the profits made by the big ISPs like Telecom, Telstra and Vodafone who play a role in illegal file-sharing.

The recently-born Creative Freedom Foundation has been vocal about the code of practice. While their slogan “no guilt by accusation” has received support, the question needs to be asked: who wouldn’t agree to that proposition? A visit to their website suggests a slightly different agenda:http://creativefreedom.org.nz/

Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.

The language on the CFF site is similar to the EFF – the “Electronic Frontier Foundation” who are challenging songwriters’ rights in Britain. The EFF has a mutual relationship with Google, the same ISP whose tactics against songwriters has angered the Featured Artists Coalition.

The entertainment industry typically does well in hard times and it’s simply bad economics for NZ to introduce a weaker Copyright framework. The Intellectual Property sector has an estimated value of 10% of the total value of our economy and is growing every year. We can’t spend our way out of the recession. We have to earn our way to growth, and songwriters and creators want to play their part. Particularly in the international marketplace, NZ music is growing stronger. This growth should not be endangered through laissez-faire policies on copyright.

Last word to Paul McGuinness, Manager of U2:

“ the failure of ISPs to engage in the fight against piracy, to date, has been the single biggest failure in the digital music market.”

Arthur Baysting – NZ Writer/Director, APRA

APRA/AMCOS members’ comments are welcome:ahealey@apra.com.au

*Artists who have signed up to the FAC include … Boilerhouse Boys, Chrissie Hynde, Craig David, David Gilmour, Gang of Four, Iron Maiden, Jazzie B, Jools Holland, Kaiser Chiefs, Kate Nash, Klaxons, Richard Ashcroft, Sia Furler, Stephen Duffy, The Verve, Travis, Wet Wet Wet, White Lies, and many others.

Published by APRA|AMCOS. © APRA|AMCOS 2008.
Freephone: 0800 692 772. Fax (09) 623 2174. Email: nz@apra.com.au.
Web: www.apra.co.nz
Editor: Abbie Rutledge. Any comments? Please email Abbie.

Please note this email address is not monitored, you WILL NOT get a response.
Please redirect your email to nz@apra.com.au – or call us on 0800 69 2772.
Thank you.
This email was created using Originate

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“The internet must not become a high-tech Wild West”
Well, now we know where John Key got that one, and I’m not suggesting he’s ever read anything by Sarkozy. The “strict new law” referred to is France’s 3 strikes legislation, the big labels’ new weapon of choice, seeing as how suing their customers hasn’t really worked that well for them. That’s the same law that prompted the European Parliament to say “Non”, that Germany and others have rejected but that we have in s92A. I’m more than a little annoyed that our claim to fame is that we beat the French to do something stupid.

“Do you think the new Copyright legislation will protect your future income?”
If it won’t, why has APRA been pushing for it? Hey, nothing like starting with a little Fear Uncertainty and Doubt! (even if you contradict yourself several paras down).

I note that APRA is conspicuous in its absence in making a submission to the TCF draft Code of Practice. Nothing to say there, Arthur? Ant?

“One is the progress on the code of practice with ISPs, now in its final stages of negotiation and expected to be adopted by most ISPs this month.”
Except that, without TelstraClear’s approval, the TCF cannot adopt it as binding, and without TelstraClear’s involvement – well, I guess people will have a new reason to switch ISPs, by which I mean ethical reasons such as supporting the only ISP who’s stood up and been counted.

“But without a reasonable code – which discourages illegal file-sharing – creators will not have an effective digital business model.”
Trent Reznor might disagree with you there. Not saying his is the only business model, but it is one to consider. Mike Masnick gave a presentation at midem earlier in the year about Reznor and NIN’s marketing approach for Ghosts I-IV. Radiohead also comes to mind.

“This is why we have been in discussions with the Government, asking them to appoint an independent adjudicator or ombudsman who can rule on any future disputes.”
This is a very recent development on APRA’s part, and a welcome one. Now if they can just make a couple of more steps towards common sense…

“Here you’ll see how the Foundation denies the validity of the term “Intellectual Property”, calling it “a misnomer”. They then challenge your legal ownership of your music, stating that any song you create is not a genuine property right. According to the CFF website, your copyright is more like “a temporary monopoly”.
Oops no, guess not. I suspect you need to chat to a (non-interested) lawyer, Arthur, because that’s exactly what copyright is, under the law. (PS Chris Hocquard’s ownership of amplifier.co.nz does not, in my opinion, make him “non-interested”. Not questioning his credentials as a lawyer, but he definitely has an interest)

“The EFF has a mutual relationship with Google, the same ISP whose tactics against songwriters has angered the Featured Artists Coalition.”
Say what, now? First point – Google, unless I missed a new release from Google Labs, is not an ISP, mmmkay? They’re a lot of things, and more every day but, even under the new legislation, I don’t think they’re an ISP. They’re a content provider, sure, they host blogs, sure, they host videos via YouTube, sure. But that’s all covered under s92C. The TCF Code is about s92A, as is the protest. There’s stuff wrong with the whole of s92, in my opinion, but that’s a fight for the next round.

Second – that’s a gross misrepresentation of the EFF, which has taken Google on as many times as it’s agreed with them, especially over privacy. The reason the EFF’s definition of copyright is similar to the CFF’s definition is that THAT’S THE LAW, in the US, here and anywhere that’s part of the Berne Convention, or TRIPS.

Thirdly – that’s also a very warped and mistaken view of FAC’s position. They believe that:

• artists should retain ultimate ownership of their music
• all agreements should be fairly conducted and transparently accounted
• rights’ holders should have a fiduciary duty of care to the originator of those rights and must always explain how any agreement may affect how their work is exploited.

In case you missed it, Arthur, it’s the music labels that the FAC holds responsible, not the ISPs. They believe the above will be achieved by:

• changing artists’ approach to agreements
• changing the recorded music and technology companies’ treatment of artist rights and incomes
• up-dating laws to reflect the new music landscape.

and, to do that they will :

• campaign for laws, regulations, business practices and policies that protect artists’ rights.
• We will stand up for all artists by engaging with government, music and technology companies, and collection societies. We will argue for fair play and will expose unfair practices.

Billy Bragg’s a-comin’ for ye, Arthur! Better head for the hills! ;-)

In fact, neither “ISP” nor “Internet Service Provider” appear anywhere on their website. Their beef is not with Google, or ISPs or the EFF – it’s with the music labels, the collecting agencies and the apparatus of the industry that they believe is damaging their business.

“The entertainment industry typically does well in hard times and it’s simply bad economics for NZ to introduce a weaker Copyright framework”
Please point to an example of this, Arthur. What’s that? You can’t find one? That’s because no-one has been suggesting this. No-one.

“Particularly in the international marketplace, NZ music is growing stronger.”
The industry talking heads, (e.g. Healey, Smith, Hocquard) keep saying this stuff and I keep wondering, well what’s the problem, then? Then, in the next breath they will say ‘but the industry is being decimated!’ ZOMG!

By the way, fellas, decimation means “1 in 10 removed”, which is 10%. Just saying.

“Artists who have signed up to the FAC include … Boilerhouse Boys,Chrissie Hynde, Craig David, David Gilmour, Gang of Four, Iron Maiden, Jazzie B, Jools Holland, Kaiser Chiefs, Kate Nash, Klaxons, Richard Ashcroft, Sia Furler, Stephen Duffy, The Verve, Travis, Wet Wet Wet, White Lies, and many others”
Glamour by association, Arthur? I have a feeling that they would not approve of your tying them to your email here. In fact, I’ve asked them in an email, so I’ll let you know what they say.

In summary, this is one of the most invalid messages from the pro-92A camp yet. Swathes of it are wrong, just completely wrong. Let’s be charitable and say that Arthur’s enthusiasm for the cause of artists’ rights has led him to mis-step, conflate matters that have no business being together, issue polemic platitudes (which I’ll grant you is not easy) and overstate the nature of the issue. Still, those he’s paid (I assume the Board members are paid) to represent should really ask themselves how good a job he’s doing.

Or I could just call “bullshit!” on the whole piece. Oh, not quite:

powered by phplist v 2.10.4
They used an open source product to send it. ;-)

9.1.6 A unanimous vote will be required for:

(a) changes to the Rules of Association;
(b) setting the fees and budget for the Forum and the use of the
Forum’s budget for carrying out any studies, consultancies or
use of external expert advisors;

(c) the endorsement of any non-regulated telecommunications
codes ;

(d) the continuation of any work stream that is subject to a
reporting requirement imposed on a Working Party by the
Board under Rule 7.1.11;
(e) Any extension beyond three months for any reporting back
timeframe referred to in Rule 7.1.11 or waiving the
requirement for a Working Party to provide the report
referred to in Rule 7.1.11;
(f) Subject to Rule 12.1.2, determining public positions and
public statements of the Forum;
(g) appointment of the Forum Administrator;
(h) changes to the documented operating procedures (“Hand
Book”);
(i) appointment of the Board’s Chairperson;

(j) Forum consultation with the public and interested parties on
draft non-regulated telecommunications codes;

(k) establishment of sub-committees of the Board referred to in
section 4.8 of the Handbook;

Plus, the withdrawal of the second largest (read “other”) telco, and a major ISP, would make a nonsense of its implementation, even if only a majority vote was needed. While some ISPs will take a while to show their hand (I understand off-line, that Orcon are “still evaluating our position, to see if there’s a workable solution.”), I expect to see some others follow suit quick smart. I’d guess none of the smaller players wanted to be the first to jump, as that would likely subject them to accusations from the likes of APRA and RIANZ that they were “soft on copyright theft”, but there’s safety in numbers.

TelstraClear’s letter is very clear on their reasoning and worth posting in full:

SUBMISSIONS ON DRAFT COPYRIGHT CODE OF PRACTICE

1. On behalf of TelstraClear, I wish to thank the TCF Copyright Working Party for the opportunity to make submissions on the draft Internet Service Provider Copyright Code of Practice.

2. TelstraClear has been represented on the Working Party, and has taken an active interest in the proposal to develop a Code. However, having fully considered the issues and also having taken account of widespread public concern on the topic, TelstraClear is of the view that it is inappropriate for the TCF to adopt such a code. The reasons for this are set out below.

The law
3. TelstraClear considers that there is a fundamental problem with the TCF being a party to any code of this nature, which is that the code would be based on flawed legislation. In particular:

a) The terms “appropriate circumstances” and “repeat infringer” are far too vague;

b) There are no safe harbour provisions for ISPs, which contrasts with similar legislation in other jurisdictions;

c) The term “Internet Service Provider” is defined so broadly that the law impacts a broad range of businesses and public facilities. Many of those entities will be unaware that the law applies to them;

d) Though the law requires a “policy” there is no guidance on what that must contain; and

e) There are no restrictions on re-connection, which means that any disconnections under the Act are unlikely to achieve any purpose.

4. In TelstraClear’s view, any industry code would simple be an attempt to tidy up poorly drafted legislation. TelstraClear does not consider this to be the responsibility of the TCF. Indeed, the best outcome would be if section 92A was repealed. Failing that, it should be amended to address the above concerns.

The Code
5. TelstraClear acknowledges the effort that has gone in to producing the draft code. At the end of the day though, a code is not required by, or even contemplated by, the relevant legislation. However a TCF code would set a benchmark which will have relevance to all ISPs, whether or not they were party to it. Since the term “ISP” is given wide meaning in the Act, the TCF, by adopting a code, would be acting in a manner which impacted on the legal positions of TCF members and non-members alike. This is an outcome to which TelstraClear has concluded that it is not willing to be a party.

6. It is important to note here that internet users (our customers) have protested considerably against the Act and its implementation. Businesses also have serious and justifiable concerns on how this will impact them. Implementation of the proposed code would in our view make the legal position worse rather than better for our customers. Accordingly, TelstraClear will not be supporting the proposed code.

7. Given this position, we do not wish to comment on the proposed code in any detail. However at a high level TelstraClear has the following concerns:

a) it requires ISPs to accept allegations as sufficient proof of infringement, provided the ISP can judge that the allegation is of a certain quality, or, for pre-approved rights holders, is in the right form. This reversal of the burden of proof is not mandated by the legislation for inclusion in any policy. It would require ISPs to act, in some circumstances, as judges, which is inappropriate. It also appears to set the bar for disconnection significantly lower than the legislation would require, which is not in the interests of consumers.

b) the code carries with it an unreasonably high administrative burden, including short time frames. This requires considerable resourcing with as yet unknown costs, which will vary from ISP to ISP. TelstraClear currently receives 1,000 equivalent type notices a month from overseas organisations and this number is likely to increase when s92A is brought into effect. Dealing with these notices will be time- consuming and expensive. To address this cost recovery should be on a case by case basis and system generated notices should be excluded.

c) downstream ISPs’ contact details can be disclosed to preapproved rights holders as a matter of practice. Since this could include information about almost any business customer, TelstraClear is extremely concerned about confidential customer information being provided to third parties in the absence of a specific legislative requirement.

Conclusion
8. The public consultation and debate that has resulted from the TCF’s decision to investigate the development of a code has been invaluable. However it is now clear following that debate that the proposed code would have an impact beyond TCF’s members and their businesses.

9. The TCF was set up to work primarily on issues exclusive to telecommunications carriers, not the highly controversial area of copyright enforcement. It is perhaps unfortunate that the possibility of the TCF developing a code has taken on more significance than is, in TelstraClear’s view, warranted. As previously stated, the legislation does not contemplate any such code and at the end of the day the TCF does not represent ISPs – either in the usual sense of the term, or in the wider way that the term is defined in the Act.

10. Finally, it should be noted that in other jurisdictions with similar legislation there are no industry codes and each ISP has its own policy. TelstraClear does not see any benefit to the New Zealand public in adopting a different approach. Given the problems inherent in the law, the feedback from customers and internet users and the fact that the Code would impact a broad range of businesses and organisations that are not associated with the TCF, TelstraClear does not support the adoption of a Code by the TCF.

Yours sincerely

Mark Aspden
General Counsel

OCR by www.OnlineOCR.net

Bad law + not our job anyway = We’re out of here

Ralph Chivers was trying to but a brave face on it yesterday:

Ralph Chivers, CEO of the TCF, says as a result of TelstraClear’s move, the TCF will not be able to complete an endorsed code. For a measure to be approved, members have to vote in favour of it or abstain, he explains.

However, Chivers says the working party will continue developing the document.

“There is still a significant majority of members in favour of continuing the work,” he says. People will be able to use the document “as they see fit”.

but it’s very academic without TelstraClear. By the way, if you looked at that Computerworld posting yesterday, have another look as it has been updated to include comment from InternetNZ and TUANZ.

This could actually be good for the TCF, as everyone and his dog has been passing the buck to them for anything that even remotely touches telecommunications. If they learn from this and stick to their last, they can be a very valuable organisation. But cops and judges, they ain’t, and all power to TelstraClear for taking such a principled stand.

Disclosure: I am a TelstraClear customer, and damn proud to be one, right at this moment.

The code will not solve copyright issues, says TelstraClear

TelstraClear has pulled the rug from under efforts to implement New Zealand’s controversial new copyright law. The telco has told the Telecommunications Carriers’ Forum (TCF) and a working party trying to thrash out a draft code to implement section 92A of the Copyright (New Technologies) Amendment Act that it no longer supports the effort.

Well, don’t that put the cat among the pigeons!

Update: Also, now in Stuff

France is also going through the process of such legislation in spite of the fact that the European Parliament has declared it not suitable to Europe. In Ireland, the IP industry has coerced the largest ISP and has sent demands to the smaller ISPs to put in place a graduated response mechanism without legislation. That’s their preferred tactic, I think.

Germany has recently knocked back such a proposal, but there appears to be a surge in United States and other countries for such processes to be put in place.

This has led some people to ask “is this just about the RIAA or are they just a useful stalking horse for wider goals of censorship and control?”.

In my view, that’s bordering on tinfoil hat territory. I’m not disputing there is a wider game being played globally by interested parties, and to some extent it’s about control. But I really don’t think censorship’s the driving force. However, I agree that the RIAA et al are front and centre, while machinations occur behind closed doors.
There is definitely a Charge of the IP Brigade to shut down what they see as infringements. What people forget is that the IP Brigade is not limited to the RIAA, the MPAA, or even our own RIANZ. I think that “graduated response” is an idea whose proponents feel its time has come (when all you’ve got’s a hammer…) but it’s only one aspect of the global pressure to secure “intellectual property rights” as physical assets.

We’re seeing a lot of action, globally, on this front, and have been for some time. There’s the SECURE working group, in the World Customs Organization, for one. Another example, although less well defined, is the ACTA — the Anti-Counterfeiting Trade Agreement. We don’t have a lot of details about ACTA. What we do know from leaked documents is that it’s as heavy on the IP side as it is on the counterfeiting — some might say more so.

The official line on ACTA is that it comes out of the United States and Japan because they feel that the WTO, and TRIPS especially, is not moving fast enough to protect their intellectual property industries. It actually goes a little deeper than that — with some major players who have kept well out of the spotlight.

In 2004, the first Global Congress on Combating Counterfeiting was held. Its major sponsor was the Global Business Leaders Alliance Against Counterfeiting (GBLAAC). Don’t go looking for them — they don’t exist any more. And their sponsorship was at one point removed from the official record of the Congress although it’s back now. The member organizations of the GBLAAC included Proctor & Gamble, Unilever, British American Tobacco, DaimlerChrysler, Philip Morris and Coca-Cola and speakers from those companies were on the agenda.

The other sponsors of the Congress appear to have been a global law firm called Baker McKenzie, and an IP and patents firm, Rouse and Co. International. Also participating were Interpol, the International Trademark Association (INTA), the International Security Management Association (ISMA), WIPO, and the World Customs Organisation.

The message was carried from the Global Congress to the 2005 G8 meeting and from there to WIPO but got no traction. They venue shifted to the WTO but likewise had no success. The banner was picked up again in 2007 by the USTR (United States trade Representative) who collaborated with Japan to present plurilateral negotiation process called ACTA, with invited participants including New Zealand.

The original sponsors are heavy hitters, and are used to playing a long game. These multinational companies with very deep pockets are the real drivers behind this wave of IP regulation. They stand to make or lose a lot of money. Tobacco and drugs (legal ones) are the focus of the counterfeiting side. Tobacco is regarded as counterfeit if it hasn’t got the appropriate government licence. The tobacco is as real, but it hasn’t been through the process.

The focus on the drug side is more about generics than fake drugs, although the safety aspect is what’s being pushed. And there’s enough truth in that to gain support.

An example of what’s at stake is that a counterfeit drug, in the US, is one that hasn’t been passed by the FDA, which can include foreign drugs and generics. You can buy it over-the-counter in Canada quite legally but if you are going on to the States, you should get rid of it as it will be regarded as counterfeit.

This part of the attack is aimed largely at India, a major source of generic drugs primarily because they can’t afford the “genuine article”. Another area that suffers is Africa, where HIV/AIDS and other killer diseases are rampant partly because they can’t afford the drugs to combat it. Generics could help them a lot but would reduce the profits of the companies, collectively known as Big Pharma.

In my opinion, the real source of this problem is the corrupt process that’s called the US Congress. In order to get elected, candidates except support from vested interests. Some of those interests drug companies, some Hollywood studios, some other music industry — all have IP they wish to jealously protect — and the legislators (some honestly) agitate to create and support legislation that their benefactors say they need to be competitive.

While a side-effect of all this protection may be a form of censorship and control, I don’t think that that is the main objective — follow the money.

“Graduated response” is only a weapon du jour. That’s why repealing s92A is only part of the solution. We need as a nation to examine what copyright means how cultural context, and how we relate to the rest of the world. We need a copyright regime that respects creators, consumers, and the businesses in between on a fair basis. And we need to examine just what copyright means from first principles.

3News has it here:

Government delays introduction of controversial ‘S92A’

The government has called for a delay in the implementation of Section 92A, the controversial Copyright Amendment Act due to come into force February 28.

John Key made the announcement at a post-cabinet press conference this afternoon, stating the implementation will be delayed until March 27.

“We are hoping that by that time we will have come up with a voluntary code of practice,” said Mr Key.

It is reported Section 92A will be suspended if no agreement is reached.

and Computer World has it here:

Finlayson John Key delays copyright law

[...] Computerworld spoke to technologist Nat Torkington who attended Finlayson’s press conference this afternoon at 4pm.

Torkington says the government may suspend the controversial S92a if no agreement is reached between the parties on how to implement it.

[...]Even if there is an agreement, Torkington says the government will monitor the first six months of the new regime and review the progress then.

My hearty thanks to everyone who has been involved in protests, and especially to Bronwyn Holloway-Smith and Matt Holloway of the Creative Freedom Foundation who, I have no doubt, are a big part of the cause of this. Well done guys!

Last Thursday, he had a set to on 95Bfm (MP3) (where he’s also a director and shareholder) with Russell Brown, media commentator and founder of Public Address. Russell rang in to criticize and correct an interview with PM John Key in which Key had said that a) National didn’t support it (when they did) and b) they had officials’ advice that they had to support it now. Anyone who read my last post
will know that, after the Select Committee process, the officials were against the reinsertion of s92A, although I have no doubt they’ve accepted it as gospel since, since to do otherwise now would be to criticize a former Minister and a current Attorney-General and Public Servant 101 says you just don’t do that in public.

Hocquard took exception to this and said that, though ISPs could disconnect people who breached their terms of service, they didn’t, and on in that vein. It got pretty messy, as Havoc’s show tends to, and Hocquard went on to say that the whole mess was the ISPs fault for not getting the Code of Practice right, and that Telecom was responsible, that Telecom had “got to” Key, which is why Key was less than unequivocal in his prior interview. I think is a pretty odd thing for an entertainment lawyer to accuse a sitting prime minister of being dictated to by Telecom, but that’s Hocquard’s problem not mine. Personally, I think Key just hasn’t got a clue.

Russell still regards Hocquard as a friend, he assures us. I am happy for him, but I’m not happy about the message that Hocquard is putting out there. Either he’s uninformed as to the facts of the business (which doesn’t appear to be the case, given the testimonials on that thread from Simon Grigg and others), or he understands them and doesn’t care. I can’t tell which. It was pointed out that he’s a hard-nosed lawyer and defending a principle he believes in, but that says to me he’s out of touch with the way the world is working now, especially for the potential benefit the Internet can bring to his artist clients on amplifier. It needs new ways of working but so does everything that changes.

Anyway, we put that thread to bed, but yesterday, I noticed this little beauty that he released on Friday. Gems like “Hysterical response to Copyright changes rings alarms”, “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” and “If you have a business model based on the illegal trafficking of other peoples’ property then perhaps it is time to revisit that model.”

The hysteria is not confined to the opponents of s92A, it seems.

I don’t know Chris Hocquard personally and, as I’m in Waikanae and not a lawyer and he’s in Auckland and is, I’m not likely to make his acquaintance. And when distance separates antagonists and communication is indirect, there’s always a risk that comments are misunderstood, taken out of context and turned into personal insults, so I’m not going down that path. But I think he’s been pretty clear in his comments, and consistent, as the ‘hysteria’ line was one he used to Oliver Driver last year.

What I’d say to him, were we in the same room, is “have you really thought this through? How, as an officer of the court, can you be in favour of removing due process?” I’d genuinely be interested in his answer.