The Law Society and lawyer Clive Elliott have come out to support a three strikes law saying that the punishment is no different than a driving penalty and that a punishment like this is not unusual. Meanwhile, Internet NZ has come out publicly against a three strikes law saying that disconnection is way out of line for the offense committed and that disconnection should be removed.
More submissions and commentary are coming out of New Zealand’s Commerce Select Committee. Late last month, critics like the Creative Freedom Foundation said that disconnection from the internet is like cutting off someone’s electricity, postal and phone service. Not to far earlier, Finland did make an internet connection a fundamental human right.
Supporters of Three Strikes
The debate certainly hasn’t calmed down since then. New Zealand news site Computer World NZ profiled two supporters of a three strikes law. In a submission to the Society’s submission to the Commerce Select Committee, the Law Society has asked for provisions eerily similar to those seen in France with regards to the three strikes law.
“During this period a subscriber can easily open an account with another ISP and immediately continue illegal file sharing,” says the Law Society’s submission. “There should be a power to allow the Court to order that the account holder cannot open an account with another ISP during the period of the suspension.”
The provision that the suspended user is blacklisted from other ISPs is a lot like what is seen in France’s HADOPI run three strikes law. HADOPI, is currently mired in controversy and red tape and could possibly resort to mandating that spyware be installed on everyone’s computer to ensure innocence can be argued in court. How far things have fallen for HADOPI in a year since its passage, but HADOPI did effectively show how ineffective a three strikes law really is when it is put in to practice. In New Zealands case, it could easily be a case if making the same mistakes and expecting a different result should it decide to model itself after France and try a three strikes law in the first place.
ComputerWorld also got the opinion of lawyer Clive Elliott on the subject – also a supporter of a three strikes law. He argued that disconnecting someone from the internet for copyright infringement is not unusual – never mind the fact that France has yet to enforce it’s three strikes regime and the only other country that has a law like that is South Korea. Maybe some supporters might think that what’s good for the Republic of South Korea is good for New Zealand. Really, where else in the world is a three strikes law anyway?
Elliott continued with his argument:
There is a lot of talk about internet access being a human right, but even if it is, the law is still entitled to abridge such rights as punishment for a sufficiently grave illegal act, Elliott says.
In some countries, internet access is a human right. Is there any evidence to support how “grave” copyright infringement really is? There are studies commissioned by the copyright industry that found interesting ways of trying to make online infringement sound much more severe than it really is. In some cases, certain organizations cried foul over infringement while quietly enjoying record breaking profits.
Here’s another argument by Elliott:
If you commit a serious driving offence, he says, you are not just banned from driving the vehicle in which the offence has been committed; you are banned from driving any vehicle. If you are guilty of harassing your domestic partner, you may be served with an order which will also stop you from having contact with your children, even though you did not offend against them.
Others have already pointed out that this is a false comparison because copyright infringement is a civil issue. Serious driving offenses are often a criminal issue. I would go further about how this is a false comparison because if you are tried for a serious driving offense like vehicular homicide, you are innocent until proven guilty. Initial accusations of copyright infringement are guilty until proven innocent. There’s more leniency in the system in terms of assumption of guilt with killing someone with your car than there is for uploading bad pop music.
Perhaps a great sign that supporters of three strikes really haven’t thought through there arguments is this:
In any case, Elliott adds, what the Law Society suggests is not a complete ban on accessing the internet, just a ban on holding a personal account. The person under such a penalty can still go to an internet café, “to go on Facebook and all those other things you do on the internet”.
If that’s the position, I honestly don’t see the point of a three strikes law in the first place.
Internet NZ
Internet NZ has also posted comments based on their submission to the government. In a press release, the organization has called for removal of the provisions that ask for disconnection:
“A disconnection penalty is a response way out of line with the harm caused by infringing file sharing. People are using the Internet for a huge range of important economic and social tasks. Cutting off their accounts is akin to banning someone from using the postal system because they were caught posting copied music CDs.
“Nobody would think that was fair. As a matter of good law, penalties for a wrong should be proportionate. The rest of the Bill, with notices and financial penalties, is reasonable. Account disconnection is not.
“In pragmatic terms, disconnection is ineffective because people generally have Internet access from a range of accounts. They also would easily be able to sign up with another ISP with no penalty.
“Disconnection is both wrong in principle, and likely to be ineffective. These two factors together indicate it should be removed as a penalty.
“Doing so would allow the role of the District Court to be removed from the legislation, leaving it to focus on serious crime and saving the taxpayer money.
Exactly. The court system doesn’t need to be tied up with thousands of cases of people having their internet connection potentially disabled. The courts need to focus on more serious issues like drug trafficking, assault, gang related crimes and many other crimes that actually negatively impact society.
Other Thoughts
The industry loves to push for a three strikes law. Often, though, those little details and specifics wind up being the Achilles Heal. How does one avoid fraudulent accusations? How does one prove their innocence? What role does the ISP play in all of this specifically? Is this constitutional? Is a court involved? How much court time will be tied up as a result? Can a three strikes law apply to streaming sites? What about private BitTorrent sites? Is there any thought to one-click hosting? How does one settle what the US likes to call “Fair Use” issues? What about the Public Domain? Do circumvention “devices” count? How does this affect archival purposes? The list goes on and on and on.
As HADOPI is finding out the hard way, a three strikes law, when you look at the details, is really simply unworkable in practice.
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This is total bullshit..
absolute rubbish.
We choose not to change to suit technology and progress but rather would force all others to change to suit ourselves, all to suit a broken business model.
The Internet is the single biggest and most important development in human history since the wheel. The sharing of information and ability for humans to communicate ideas outside of the sphere of the nation state is the single most important political change since the succession of Parliament over Monarchy.
We are to impose limitations in order to protect one dying business model and one dying monopoly.
No, Sir we will not.
“How does one avoid fraudulent accusations?”
Have authorized, accredited 3rd parties, paid by the IP rights holders perform the piracy tracking and complaint submittal.
“How does one prove their innocence?”
Your word against theirs, same as any other crime. Or if you’re that paranoid about being falsely accused 3 times over, you install personal logging software like you suggested.
“What role does the ISP play in all of this specifically?”
They forward identities by request and administrate the bans as required.
“Is a court involved? How much court time will be tied up as a result?”
I see no reason a court need be routinely involved. It is a private matter of ISP terms of service. ISPs already reserve the right to terminate accounts on their own at any time they choose. And no major ISP has TOS that permit piracy. Courts can be used for those who want to file a lawsuit back against the ISP for wrongful severance or discrimination, but I doubt most would bother.
“Can a three strikes law apply to streaming sites? What about private BitTorrent sites? Is there any thought to one-click hosting?”
Private Bit Torrent can be tracked just like any other Bit Torrent, so of course it applies. Streaming and one-click hosting both must be addressed at the source through take down requests or ISP filtration if they refuse to comply.
“How does one settle what the US likes to call “Fair Use” issues? What about the Public Domain?”
Torrenting a Hollywood movie never qualifies as fair use. Public domain works would not be penalized, since by definition they can’t be pirated.
Actually, Clive Elliott is not “also a supporter of a three strikes law”, which makes it sound like he is independently supporting the Law Society’s position. In fact, he wrote the NZLS submission so it is really just Elliott/NZLS on their own on this in New Zealand. Most ICT people, including other lawyers like myself, a very much termination as a remedy (for all the usual, well trodden, reasons).
Note that when I picked up on this NZLS submission, they removed it from their website:
http://lawgeeknz.posterous.com/nz-law-society-wants-people-kicked-off-intern
“During this period a subscriber can easily open an account with another ISP and immediately continue illegal file sharing.”
Begging the question. Albeit anyone ‘can’ easily sign up with an ISP, as it should be, that reasoning is invalid justification for enforcing disconnection.
“There should be a power to allow the Court to order that the account holder cannot open an account with another ISP during the period of the suspension.”
The same desires as any baseless wannabe dictator.
*”He argued that disconnecting someone from the internet for copyright infringement is not unusual …”
This is contradictory in itself, because enforcing disconnection on false premises is in fact unusual, and allegations that perpetually come from fabricated evidence is as unusual as it is a disgrace to law.
“There is a lot of talk about internet access being a human right, but even if it is, the law is still entitled to abridge such rights as punishment for a sufficiently grave illegal act, Elliott says.”
That is false. It is impertinent whether the act is grave or not, as long as Internet access is not the very thing that causes it. The extent of which Internet access allows it is also impertinent, because if the access allows one user, then it does so for all users. Thus, even if an act involves accessing the Internet, that access is completely irrelevant.
“If you commit a serious driving offence, he says, you are not just banned from driving the vehicle in which the offence has been committed; you are banned from driving any vehicle. If you are guilty of harassing your domestic partner, you may be served with an order which will also stop you from having contact with your children, even though you did not offend against them.”
All drivers require minimal education or training and must abide to all the driving regulations. Driving knowledge acquired must be apparent, or amount to naught. Abide to all the regulations, or risk harming others. The damages of accidents are physically measurable. It goes without saying that his comparison of Internet access with this is absurd nonsense.
“In any case, Elliott adds, what the Law Society suggests is not a complete ban on accessing the internet, just a ban on holding a personal account. The person under such a penalty can still go to an internet café, “to go on Facebook and all those other things you do on the internet”–
– And file sharing, which conflicts his own statement I initially quoted above.