On the Gripping Hand

I just watched TV3′s Sunrise segment with Chris Hocquard, an entertainment lawyer, wobble on about section 92a. He’s a director of amplifier.co.nz (which I’m pleased to see he wasn’t plugging, so kudos for that) and chair of bFM, which gives him some skin in the music game, but I wasn’t too impressed with what he had to say. Judge for yourself.

Transcript (caveat – best efforts only, based on material copyright TV3 2008):

DRIVER: What’s at the heart of Section 92a?

HOCQUARD: It’s something that says, if you know it’s going on and we point it out to you, we want you to stop it. So it’s just aimed at the ISPs saying we think you know how to do this, can you stop doing it”

DRIVER: So, basically, if I’m accused of copyright infringement, and the ISP is then legally obliged to cut off my Internet access-

HOCQUARD: Nah, nah, it’s not going to work like that, it’s um if you have a look at the legislation itself, 92a is just one small part of a whole revamp of the Copyright act. There’s a whole series of provisions that go in that say how this whole thing’s gonna happen. And 92a is being phased in over about 6 months, the industry, the people that own the content, you know, the digital content providers, are sitting down even today meeting with the ISPs and working through a series of protocols to try and put a whole system together that will work. There’s also a set of regulations coming out. So no, it’s not going to be like that, it’s just blog hysteria.

DRIVER: Is it though? I mean -

HOCQUARD: yeah, yeah

DRIVER: Surely there should be some element of proof that needs to be put in place

HOCQUARD: There is , pretty simply there will be, it’s like there’ll be a high standard of proof , it won’t be just, you know ring up and say “I think Oliver’s downloading stuff” and they’ll turn your internet off, that’s just – that’s hysteria.

DRIVER: How do you prove it?

HOCQUARD: How do you prove it? You – the easiest way to prove it is to actually catch someone doing it and generally the record companies and RIANZ and things like that, they have got investigators and they’ll look. They’ll go and look and they’ll find people who are servicing a lot of files to the net – they’ll get the information and they’ll pass it on to the ISPs.

DRIVER: How do you get that information, though, because surely more and more of the illegal downloaders and providers will encrypt – [...] get that information

HOCQUARD: How do I get that information?

DRIVER: Not you personally

HOCQUARD: Well, yeah, no, I dunno, ummm, there was a thing the other night on the news about people stealing other people’s wireless connections and things like that, the technology’s there , you can, you know, your umm your number that you have for the internet , it’s not a confidential thing, they can track pretty much everything that’s going on

DRIVER: Is it greatly affecting the New Zealand entertainment industry at the moment?

HOCQUARD: Yeah, it’s decimating the music industry. It’s just being gutted by the whole thing. The umm as the broadband gets faster and faster it’s starting to cut into TV, it’s certainly cutting into DVD, um yeah, it’s terrible.

DRIVER: Is there any argument, because I’ve heard people who download music who say that they do it, they do it and then if they like the album, they will generally go out and buy it. And that they use it as sort of a taster . Is there any warrant to that?

HOCQUARD: That’s probably 5% of the people and there are 95% of the people who go “I like the music, it’s free, I’ll have it”. There’s some kind of ethos that’s developed that says if it’s on the internet and it’s free, I can have it. It’s not, it’s theft.

DRIVER: But do you think there’s going to be a way to solve this? Surely, as soon as they come up with one solution the internet’s going to come up with another one.

HOCQUARD: Yeah, and I think that’s always going to be a problem. You’re never going to be able to catch the people that are determined to do it. But there will be, there’s , you know, it may be a little naive, especially from a lawyer , but I do think that there is a vast mass of people who are quite happy to pay for things if it can be made easy for them.

DRIVER: Things like iTunes and things like this.

HOCQUARD: yeah. It’s starting. I think the record companies, to be fair, you know, didn’t handle this very well from the start and they’re slowly but surely catching up now, but, you know, 10 years ago, they probably could have taken a slightly different approach. If they’d licensed Napster, we might not be here now
[ENDS]

So, what’s the takeaway I get from this:

1. Proof will be required
2. Regulations are coming to back up the Act
3. The ‘industry’ will have investigators who can tell who is offending
4. There is technology out there that can do all this
5. The NZ entertainment industry is being decimated
6. 95% of people will “steal” music
7. The music industry could have handled this better from the start
8. Copyright infringement is stealing
9. Apparently, I’m hysterical

Point by point:

1. We don’t know the ‘proof’ is yet but it will apparently be a”high standard”. Why is the requirement for proof not in the legislation, where it should be?
2. You know, both Tizard and the PM could have talked more about this weeks ago. It is in 92D(a) of the Act, and there’s a brief mention in Tizard’s press release from 3 October, but as yet no indication of any draft regulations (there might be something on MED’s site, but how would you know?).
3. Ah, “industry investigators” – I wonder if RIANZ will use the same ones that the RIAA use?
4. I’d really like to know about that technology and who’s going to pay for it. The only way I know for ISPs to identify content in transmission is deep packet inspection and the tech ain’t cheap. And what I wonder is, how are the “investigators” going to get the information to pass to the ISP for action, without going to the ISP to get the information about data flows. The burden on ISPs is starting to become very onerous.
5. I keep hearing this and I’m seeing no stats to back it up. Let’s get evidence out here – actual situations where bands have had their music copied illegally, where they have had actual financial losses. If it’s happening, cases should be easy to find but we’re only seeing anecdotal evidence of “massive losses” that no one can accurately quantify
6. Way to go, Chris! Numbers from your fundament FTW!
7. Good gods, something I agree with Chris on. It won’t last, I’m sure.
8. Sad to see this from a lawyer who, as an officer of the court, should know better. Copyright infringement is an offence under the Copyright Act; theft is an offence under the Crimes Act. Sing with Cookie now: One of these things is not like the other
9. When this is the level of analysis, can you blame me? I feel like I’m (once again) banging my head against a brick wall of willful ignorance, from Tizard on down.

Still, well done again to Ollie Driver for getting this stuff in front of people. I can’t wait to see who he gets next.