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RIAA’s VP of Strategic Data Analysis Issues Statement On Megaupload Shutdown

Jon Kaykin — Thu, 26 Jan 2012 01:46:19 +0000

RIAA's VP of Strategic Data Analysis believes that the shutdown of Megaupload and other P2P file sharing sites is mandatory and will decrease file sharing. Truthfully, it will upset many. Megaupload's shutdown by the Justice Department has caused a lot of controversy regarding piracy and whether file sharing sites like Megaupload should exist. One of the major supporters of the shutdown was the Recording Industry Association of America, naturally because they handle copyrighted music and want to make sure that no "unauthorized content including music, movies, and other copyrighted works" is shared. The shutdown led the RIAA's Vice President, of Strategic Data Analysis, Josh P. Friedlander, to issue a statement on their blog, titled Why Closing Megaupload Matters. Although, the post is aimed towards Megaupload, it mainly points out why they believe closing P2P services is important, alluding to Limewire's shutdown. Supposedly, the shutdown of Limewire, according to the NPD group, decreases the use of P2P file sharing but really, with all the P2P file sharing sites out there, I find it hard to believe there is a decline in use. Friedlander also points out, "Digital music sales that had been flagging jumped in the month immediately after the Limewire shutdown, and have remained stronger ever since (note that while the Beatles did go on iTunes in November of 2010, they only account for a small portion of that sales increase, and current music sales went up even more than catalog). When Billboard looked at the data after the Limewire shutdown it said “The spike in sales was immediate, noticeable and lasting." A chart of the sales spikes in 2011 can be seen below. While this evidence may support the shutdown of P2P file sharing sites, the problem is that it doesn't matter. Shutting down these sites will not, as Friedlander says, "encourage users to go to legitimate sites," rather it will make them upset and angry, as in the case of Pirates of Catalonia, a political party in Catalonia that supports intellectual property reform, open access to culture and knowledge, transparency and Direct Democracy. They have announced a collective civil action in Spain against the FBI because the shutdown has caused many users to lose files containing personal information and this may have violated Articles 197 and 198 of the Spanish Penal Code. It's understandable that many artists (and there record labels) want to be compensated for their hard work but in the case of many Megaupload users who lost their important personal files, action against the unlawful seizure of those files must be taken. Many have spoken out regarding the shutdown of Megaupload and many P2P file sharing sites such as Filesonic, Fileserve, FileJungle, UploadStation, 4shared, VideoBB, VideoZer, UploadBox, and Uploaded.to have shutdown their services to the U.S. As I stated above, regardless of the shutdowns, people will continue to use P2P file sharing sites and they will collectively rise up to keep the sites around. See Also: 10 Alternatives to LimeWire Jon@zeropaid.com | @jkaykin

French Report – Legal Punishment for Filesharing as Severe as Manslaughter

Drew Wilson — Mon, 29 Aug 2011 21:14:08 +0000

One of the criticisms of copyright laws has, for some time, been that the punishment is far too severe for the crime being committed. This debate is nothing new and it seems to be heating up in Europe right now. One French news site decided to compare the penalties of file-sharing to the penalties of other offenses. The results? They are a little scary.

The report comes from Numerama which was inspired by a recent conviction in Sweden. They asked, if someone could be put in jail for 3 years for file-sharing, what other crimes could someone commit and get either an equal sentence or less? They said (Google translated, original) said that the answers pretty much speak for themselves and I, for one, completely agree. Two things to keep in mind: this is all about French law and the laws are sourced nicely (job well done to Numerama in that department for sure). Here are some of the offenses that could earn you a jail sentence similar to that if you were convicted of copyright infringement on a file-sharing network:

Manslaughter
Repeatedly sending death threats on a transfixed medium
Conducting biomedical procedures on someone without the consent of the patient
Theft
Breach of trust
Some forms of obstruction of justice

Here are some of the offenses that could land you in jail for less time:

Sexual exhibition in a public place
Harassment in order to obtain sexual favors
The desecration of a corpse in a cemetery/attacking a corpse
Third party identity theft (note: this wasn't entirely clear in the translation, but we are presuming that the translation meant "third party" since it simply says "by a third")
The abandonment of a child/infant
Making sexual advances to a minor whether electronically or otherwise (if the minor is 15 years old or younger)
Destruction of other people's property
Serious offenses related to animal abuse

I'm looking through this and I really wonder what is wrong with a legal system that says that if you are caught sharing copyrighted works, you could get a sentence as long as someone who killed someone. I personally can't see how it should be possible in the first place. Still, this has always been an extremely effective way of showing just how extreme the penalties have become for something so trivial as someone having a copyrighted work in their shared directory. I'm a music producer myself and I have always been all for the sharing of my works online for free. I think that even if I were hardcore all for copyright, I would have a hard time, at the very least, trying to explain to the public why someone who made sexual advances to a minor should serve less time than someone who is uploading an album on the Gnutella network. The thing is that with a lot of these offenses in the list are offenses where people are being directly harmed. For me, I don't think anyone could make a convincing case that file-sharing is a crime that is as bad as killing someone. Such comparisons have been made before. One great example in the US was looking at the Deepwater Horizon oil spill - the largest oil spill in US history. According to one report, BP was facing a $21 Billion fine. Looking at the damages for infringement one can find out that the BP fine presented in that particular report can be the equivalent to downloading 140,000 songs or 70,000 songs in the case of willful infringement. In any event, I think for French people, this really does put into perspective how high the penalties are for infringement. The day we start placing intellectual property on a higher level of value than life itself is the day I think society needs to seriously re-look at our values. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

NZ Government Faces Disconnection As a Result of Three Strikes Law

Drew Wilson — Thu, 11 Aug 2011 19:12:38 +0000

With New Zealand three strikes law in place, some might wonder who could be one of the first victims might be. It turns out that it could be none other than the New Zealand government itself. Facing liabilities of copyright infringement, the Green Party of New Zealand says that this could ultimately force the New Zealand government to disconnect itself from the internet.

Many would argue that the New Zealand government simply didn't think their three strikes law through before passage. This latest development might not quell those thoughts. According to the Green Party of New Zealand, the New Zealand government could face fines for copyright infringement if they do not disconnect themselves from the internet. "There doesn't seem to be a plan for Parliament to deal with the new copyright law," Green Party ICT spokesperson Gareth Hughes said. "This law could bring the gears of government to a grinding halt because the holder of the account — Parliamentary Services — provides internet access to hundreds of users anyone of whom could cause infringement notices to be sent." Indeed, shortly after we reported on the passage of the law (which comes in to effect September 1st), we also reported on the fact that it could end all public WiFi in the country. It would appear that the countries own government wouldn't be immune to this. "Like Parliament, schools, libraries and universities run the risk of fines or disconnection. Unitec in Auckland has even said they might cease providing internet services for students due to possible copyright liability," said Mr Hughes. "The Government has a responsibility to ensure that public institutions can navigate around the new law and not run the risk of fines or disconnection. "By not providing information or advice and relying on InternetNZ, Internet Service Providers, and the media, Mr Power has left schools and universities in a legal grey area." Shortly after the three strikes law in New Zealand was passed, diplomatic cables released by Wikileaks showed that the three strikes law was Pushed, Bought and Paid for by the US. This raised serious concerns with the Green Party of New Zealand who asked why Hollywood was writing New Zealand's laws to begin with. I think this is a sign that the New Zealand government simply concerned themselves with the interests of major foreign corporations and disregarded any domestic interests in all of this. That is why a dead on arrival policy like a three strikes law was enacted in the first place. Forget concerns about national security, small business, the local economy, human rights and potential for abuse of the system, foreign corporations wanted this law and that apparently trumps all reason and all other interests in the debate. [Via BoingBoing] Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Hollywood Wins Court Case – ISP Ordered to Block NewzBin2

Drew Wilson — Thu, 28 Jul 2011 22:47:29 +0000

While major entertainment corporations are working hard at censoring the internet in the United States through the PROTECT IP Act, it corporate sponsored censorship has already become a reality in the UK thanks to what some have referred to as a landmark court case.

Legally speaking, the internet got a little more censored recently. The Telegraph is reporting that Hollywood has won a major court case in which they are now, for now, able to compel ISPs to block access to, really, any website they pick and choose in the name of combating copyright infringement. At stake was general access to a website known as NewzBin2. NewzBin2 is a website that offers an index of NZB files. NZB indexing sites are generally simply a list of small files that are merely metadata. The NZB files points to a file made available on one of the oldest known file-sharing networks that is still used quite a lot - UseNet. The file is a bit like a .torrent file, only the file is on a server - or maybe several servers - instead of on other people's computers. The actual downloading typically doesn't happen on the NZB indexing site nor is the NZB indexing site keeping track of any data flowing to and from the user. An NZB file may be convenient, but it simply isn't necessary for downloading anything on UseNet (access to UseNet providers, sure, but not the NZB file) So, knowing this, the only thing the court ruling really does is enable Hollywood to censor the internet in the UK. Blocking NewzBin2 will amount to nothing in the end except maybe a temporary minor inconvenience for some people. Many already point to the fact that an encrypted connection will circumvent whatever the ISP throws down against its own users - and if you're using UseNet regularly, there's a good chance you'd know about how to hide your connection from ISP level censorship anyway, I think. What is a little disconcerting is what the judge said in his ruling. From the report:

“In my judgment it follows that BT has actual knowledge of other persons using its service to infringe copyright: it knows that the users and operators of Newbin2 infringe copyright on a large scale, and in particular infringe the copyrights of the Studios in large numbers of their films and television programmes," said Justice Arnold. In opposing the order, BT had argued that Newzbin2 also links to lawful content, but the court said it was far outweighed by pirated material and that "BT’s best shot was to point to a reference to the 1891 Lancashire census".

If the judge is suggesting that ISPs know what everyone on their network is doing, then isn't that like saying that the operators of a major subway network know exactly where everyone in the network is going? Sure, whoever is controlling the network might be able to track a handful of individuals, but trying to track every person is way too demanding as the amount of man hours to make sure it knows the movements of every user is simply impractical. Even scarier is the suggestion that lawful content is no excuse to stop the blocking of a website. It's very difficult to really know where to begin with that. How much content has to be infringing in order for the website to be blocked? Will it have to be more than 50% infringing content? 25% infringing content? One song that happens to have three notes that are similar to another song? Where's the bar set here? That point is not reflected in the report and if the judgement doesn't specify what the level is, it's not completely illogical to suggest that Hollywood can really block every website in existence. How many websites have at least a reference to copyrighted material (i.e. a message on a forum saying "Listening to Kiss right now.")? The amusing part is the fact that the censorship of NewzBin2 will be put in place in the Fall. No doubt this will give NewzBin2 plenty of time to figure out how to bi-pass this measure for it's UK users. Even better is the fact that this only affects BT currently and similar motions will be brought to other ISPs. I don't see how NewzBin2 simply changing it's website to another name for its British users won't defeat this in any way. Call the site "Fuzzybunniesjumpinginthefield.com" and allow access to the NewzBin2 services. If you plan on finding ways to circumvent British censorship in order to download the entire Adbobe Suites in the future, you only have until the end of the Summer holidays to figure it out! In the end, this will do little more than damage the internet infrastructure as more methods to circumvent censorship measures will be developed. Activities like this will probably have an affect on users wanting to use the internet for legitimate purposes, but it's unlikely that this will even come close to putting a dent on file-sharing. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Judge Slashes Jammie Thomas Fine to $54,000

Drew Wilson — Tue, 26 Jul 2011 09:57:25 +0000

The case is at least 4 years old now, but that doesn't mean it's over. Jammie Thomas trial was described as a "first of its kind" trials where a file-sharer was sued for sharing music in the US. Now, a new development has unfolded in this long-running trial which may very likely be seen as a major blow to the RIAA (Recording Industry Association of America).

If you are caught sharing music on a P2P file-sharing network, and you go to court and lose, what exactly should the fine be? Citing the minimum and maximum statutory damages doesn't count, the court needs a specific amount. That's become the real hitch for the court system for a very long time now. How does one prove an exact dollar amount that fits the crime of non-commercial infringement? The reality is, and that's been abundantly clear in this case, there is no solid argument to prove that the non-commercial file-sharing causes "x" amount of dollars in damage. In 2009, Jammie Thomas was fined $1.92 million for sharing 24 songs. The fine was not satisfactory for all parties in the case and Thomas appealed. The question of how much the fine should be has haunted the courts ever since. Recently, the EFF pointed to the latest ruling in the landmark trial, citing the following in the judge's ruling:

[A]n award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first‑time willful, consumer infringer of limited means who committed illegal song file‑sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

It is unclear if the RIAA will appeal this decision and further drag out this case. Major rights holders are pushing to censor the internet to the detriment of internet and national security instead among other things, so the file-sharing lawsuits have really become an outdated practice - even to the record labels by now given their different (flawed) approach to the internet these days. So, whether or not the RIAA will cut their losses at this point or vow to fight on remains to be seen. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

300 Irish Internet Users Wrongfully Receive First Strike Notices

Drew Wilson — Fri, 17 Jun 2011 23:00:54 +0000

False accusations have long been a subject for those sceptical of a three strikes law. Given the complexity of tying an IP address to a subscriber is much too complicated for any form of automated system, it should come as no surprise for sceptics to find out that people are wrongfully receiving notices for copyright infringement.

Record labels have been pressuring ISPs to implement a three strikes law in Ireland for years. In fact, in 2008, the record labels went to the extreme length of suing Irish ISP Eircom in a bid to get them to implement a three strikes law. In 2009, the ISP folded to pressure and agreed to implement a three strikes law for its users. Then, as of 2010, Eircom implemented the three strikes policy on their subscribers much to the outrage of many people including the Pirate Party of Ireland. There's plenty of ways to be critical of a three strikes law or policy. One way is to be critical of the technical nature of such a policy. It's all well and good to be able to find an IP address on a file-sharing network, but it's quite a different matter of actually tying that to an actual person. For instance, one person could by hijacking someone's IP address via an insecure Wifi network. Even marginally secure Wifi networks won't guard against any possible threat. Back in 2010, a USB device circulated the Chinese marketplace that would crack in to Wifi networks. Ultimately speaking, one person could be using someone else's IP address to share copyrighted material unbeknownst to the actual subscriber. Of course, there;s also the study even further back in 2008 which showed that even a printer could be framed for copyright infringement. So really, it's should come as no surprise to copyright observers that false accusations are being made even with a three strike policy present. That was certainly the case, as EDRI points out, in Ireland when 300 users received first strike notices over infringements they never even committed. According to IT Law in Ireland, Eircom is investigating the matter and offered the following explanation:

This was due to a software failure caused when the clocks went back last October, it said.

As was noted in the posting, it's very peculiar that there is an effort to take on the enormous task of identifying people via IP address, yet, this same effort can't even account for daylight savings time. It get's even more interesting:

The DPC said it was investigating the complaint "including whether the subject matter gives rise to any questions as to the proportionality of the graduated response system operated by Eircom and the music industry"
This is unsurprising - when the Eircom / IRMA three strikes settlement was being agreed the Data Protection Commissioner identified significant data protection problems with it. These problems remain, notwithstanding the deeply flawed High Court judgment which approved of the system - a judgment which, for example, decided on the question of whether or not IP addresses are personal data without once considering the views of the Article 29 Working Party. It is not surprising that the Data Protection Commissioner was not convinced by that judgment (the judgment was problematic at least in part because the Commissioner was not represented - the only parties before the court had a vested interest in the system being implemented). However, until a concrete complaint arose no further action could be taken. The complaint in this case has now triggered that action, and it seems likely that the Commissioner will reach a decision reflecting his previous views that using IP addresses to cut off customers' internet connections is disproportionate and does not constitute "fair use" of personal information. If so, the Commissioner has the power and indeed the duty to issue an enforcement notice which would prevent Eircom from using personal data for this purpose - which would ultimately seem likely to put the matter back before the courts.

Indeed, there have been numerous legal questions surrounding a three strikes law. Early this month, Frank La Rue, the UN’s Special Rapporteur on freedom of opinion and expression said that a three strikes law was a violation of the International Covenant on Civil and Political Rights. What all this seems to suggest is the crumbling of the attempt to implement a global three strikes law. Even if secret agreements like ACTA or TPP say that countries must implement a three strikes law, it now runs in to obstacles such as the UN Rapporteur and complaints about false accusations. I would go so far as to say that the window of opportunity to force a global three strikes law is passing. It certainly was more possible three years ago to try and force countries to implement a three strikes law, but now it is becoming increasingly difficult to not only persuade countries to implement them, but to make sure countries that have some form of implementation to keep the policy in place. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Global P2P Traffic to Double by 2015, Decline by Percentage

Jared Moya — Mon, 06 Jun 2011 16:05:27 +0000

Though would decline to 16% from current 40% as demand for consumer video services like Netflix surges. Global online video community expected to increase by 500 million users.

Global Internet traffic is growing faster than ever, and is expected to quadruple by 2015 to reach 966 exabytes per year, according to Cisco's latest Visual Networking Index (VNI) forecast. "The projected increase of Internet traffic between 2014 and 2015 alone is 200 exabytes, which is greater than the total amount of Internet Protocol traffic generated globally in 2010," it said in a press release. "On the verge of reaching 1 zettabyte, which is equal to a sextillion bytes, or a trillion gigabytes by 2015, global IP traffic growth is driven by four primary factors, according to Cisco." So what are the primary drivers of global IP traffic growth? They include:

1 An increasing number of devices: The proliferation of tablets, mobile phones, connected appliances and other smart machines is driving up the demand for connectivity. By 2015, there will be nearly 15 billion network connections via devices -- including machine-to-machine -- and more than two connections for each person on earth. 2. More Internet users: By 2015, there will be nearly 3 billion Internet users --more than 40 percent of the world's projected population. 3. Faster broadband speed: The average fixed broadband speed is expected to increase four-fold, from 7 megabits per second in 2010 to 28 Mbps in 2015. The average broadband speed has already doubled within the past year from 3.5 Mbps to 7 Mbps. 4. More video: By 2015, 1 million video minutes --the equivalent of 674 days --will traverse the Internet every second.

For file-sharers the VNI forecasts a decline in global P2P traffic from the current 40% to a more modest 16%. This statistic should help give file-sharers some breathing room when ISPs complain they are "bandwidth hogs" who consume an inordinate amount of network resources. Now even at 16% an expected quadrupling of global Internet traffic will still mean P2P traffic will nearly double in volume by 2015, but the much lower percentage ought to still give them some political cover. "The overall quantity of P2P is still increasing but because everything else is growing so much faster, the percentage of P2P traffic in the mix shows a decrease," said Cisco's Doug Webster. The real bandwidth hogs will soon become online video consumers via services like Netflix. Cisco says the global online video community will increase by approximately 500 million users by 2015, up from more than 1 billion Internet video users today. Stay tuned. jared@zeropaid.com ___________________________________

New Zealands Three Strikes Law was Pushed, Bought and Paid for by the US – Wikileaks

Drew Wilson — Mon, 02 May 2011 00:31:34 +0000

The slow trickle of leaked diplomatic cables from Wikileaks may not be in the headlines as much as it was when it started, but revelations keep pouring out of the website. Recently, new diplomatic cables published on the site revealed just how, not only influential the US was, but just how much control the US had over the passage of the three strikes law in New Zealand.

If there wasn't any anti-American sentiment before in New Zealand, there certainly will be for some after new diplomatic cables were published revealing the role the US had in pushing for a three strikes law in New Zealand. The New Zealand's new three strikes law was the most controversial copyright laws in the country and one of the most controverisal in the world. While the law was being proposed, debate was fierce. The law sparked repeated blackout protests where websites would black out their website logo's in protest of the law since it is widely seen as a censorship law more than a copyright enforcement law. Last month, in spite of major opposition and protests, New Zealand passed the law anyway to the dismay of the New Zealand population. Now, thanks to Wikileaks, we can see just how far back the United States was pushing New Zealand to pass that law in the first place. A diplomatic cable that was sent clear back in 2005 shows that the US was offering up money to put in new copyright laws. The cable was very detailed about the budget cost at the time:

Total costs: NZ $533,000 (US $386,158) Start-up costs: NZ $78,000 (US $56,510) Salaries: NZ $215,000 (US $155,768) Operating costs: NZ $240,000 (US $173,880) Start-up costs (NZ dollars): Furnishings $25,000 IT costs (equipment) $45,000 Sundries $8,000 Salaries (NZ dollars): Unit head $90,000 Intelligence and policy development $60,000 Licensing and enforcement officer $40,000 Administrative support $25,000 Operating costs (NZ dollars): Accommodations (rental, utilities) $55,000 IT support $15,000 Legal costs (investigation, prosecution)$75,000 Training (internet piracy, law) $50,000 Travel costs $35,000 Employer liabilities $10,000 NOTE: In U.S. dollars, legal costs would be $54,338 and training costs would be $36,225.

In another cable in 2005, we see the US saying that establishing fair use type laws being a bad idea:

The New Zealand government has proposed amendments to the Copyright Act 1994 that would allow format-shifting, or the duplication of sound recordings to another format for a purchaser's private use without the copyright owner's permission. The amendments also would extend to all communication works a provision in the Copyright Act that permits time-shifting, or the recording of a broadcast or cable program for private use solely for the purpose of viewing or listening to the recording at a more convenient time or for making a complaint. The amendments were proposed and released as a cabinet paper in June 2003, after a review of how digital technology had affected the country's copyright law (see Paragraph 13). Legislation incorporating the amendments is being drafted and is expected to be introduced in Parliament in April. (ref D) As the International Intellectual Property Alliance noted in its Special 301 submission, these exceptions to copyright protection would send the wrong message to consumers and undermine efforts to curb unauthorized copying of CDs in New Zealand. They would cost the industry in revenue and profits and discourage innovation. However, Associate Minister of Commerce Judith Tizard still is discussing the issue with the music industry and has expressed a desire for a solution that satisfies all parties, although the format-shifting and time-shifting exceptions remain for now as proposed in the cabinet paper. We will continue to work with the government and industry on this issue. In the meantime, with discussions ongoing, we believe a Special 301 listing over this issue would not be helpful.

It's ironic that they would view fair use provisions like this as something that would discourage innovation since fair use in the US brings in billions to the economy. The only innovation that comes out of restricting these types of activities are ways of skirting the laws more than anything else. The question the New Zealand government is this: Should the government be passing laws that encourages innovation for future law breakers or should the government be passing laws that encourage innovation for people who contribute to society legally? That's ultimately the choice the New Zealand government faces when considering broader exceptions to copyright. In 2008, there was another diplomatic cable which showed the US considering how they would apply pressure to New Zealand:

Post recommends that New Zealand (GNZ) not/not be placed on the Special 301 List in 2008. The country's overall commitment to the protection of intellectual property (IPR) is relatively high as compared to most countries cited in the Special 301 review. Despite the slower than anticipated pace of legislative progress, the government remains committed to updating its intellectual property laws to ensure compliance with international standards, with planned revisions of the Patents Bill and the Copyright Amendments Bill ("New Technologies and Performers' Rights Bill") progressing through the legislative queue. Some momentum has been lost over the past year due to slowdown in the legislative agenda as the Government shifts its attention to upcoming elections in 2008. Though New Zealand generally provides adequate and effective protection of intellectual property rights (IP) under current law, Post will continue to engage Members of Parliament, the Ministry of Economic Development and local IP industry in order to press our concerns that pending legislation reflects international IP standards and passage occurs in a timely fashion. To date issues raised about the draft Copyright Bill by IP industry are being considered by the government and will be monitored by Post. It's reasonable to anticipate a renewed commitment to the passage of IP legislation by the GNZ post election cycle. Placing New Zealand on the Special 301 list at this stage may prove to be counter-productive as it likely will result in a defensive rather than consultative exchange.

Michael Geist, recognizing the similarities between Canada/US relations and New Zealand/US relations in this case, commented, "That recommendation is striking when compared to the regular placement of Canada on the list, despite very similar laws." Later, in March, 2009, there was discussion specifically about the section of the copyright bill related to the three strikes law:

On February 23, five days prior to the full implementation of the ISP provisions (sections 92 a and c) in the new Copyright Bill, Minister of Commerce Simon Power suspended the ISP sections of the law from coming into full force for 30 days (end of March 2009). The Minister's action will give the IP rights holders represented by the Recording Industry Association of New Zealand (RIANZ) and the Australasian Performing Rights Association (APRA) additional time to negotiate with the ISP trade association, the Telecommunication Carriers Forum (TCF) a mutually agreeable code of practice for terminating the internet access of users accused of infringing copyrights. Once the code of practice is adopted, the government will monitor its efficacy during the first six months after the law's enactment.

A month later, a diplomatic cable was sent noting the fierce rise in opposition to the three strikes law:

The Copyright (New Technologies) Amendment Act 2008 was originally scheduled to go into full force on February 28, 2009 but in the weeks leading up to the deadline, public interest groups raised a chorus of concerns claiming that the law's requirement to terminate internet subscribers who allegedly "pirated" digital copyrighted materials over the internet would infringe on due process, freedom of speech and the public's right to access information. The negative publicity led to demonstrations staged in front of Parliament, organized by a group called the Creative Freedom Foundation. The publicity drew the attention of some minority party politicians who hoped to ride a new populist wave. The United Future Party's leader Peter Dunne wanted Parliament to strike section 92A entirely from the new copyright bill through an arcane legal maneuver which would have required the Governor General to quash the provision. ACT Party leader Rodney Hyde also joined in the chorus calling for repeal of the section while he castigated the previous Labour government for its "poor" drafting of the Bill. Both United and ACT are current members of the National led coalition government. In reaction, a core panel was formed within the Cabinet consisting of the Commerce Minister Simon Power, Communications/IT Minister Steven Joyce, Broadcasting Minister Jonathan Coleman and Attorney General Chris Finlayson to develop a game plan and dampen the negative publicity. Meanwhile, Dunne had been asked by Simon Power to consider reformulating the provision in language more acceptable to the ISPs instead of stripping the law entirely of its content. The response developed by the four ministers and announced by Simon Power as lead was to suspend section 92A for 30 days during which time the IP rights holders would hammer out a code of practice with the Telecommunication Carriers Forum (TCF - industry association representing NZ's major ISPs - Telecom, Telstra, Vodafone, Kordia and Callplus) which would serve as the regulatory foundation for section 92A. The law would then go into force at the end of March and after 90 days it would be reviewed as to its appropriate application.

In response to the uprising for drafting such a poorly conceived law, the cable goes on to make the following recommendations:

Throughout the final stages of the law's (near) implementation, the Embassy continued to met with IPR stakeholders and GNZ officials to ascertain progress and encourage resolution. To determine how a "workable" section 92A provision can be secured, Econoff met with Rory McLeod, Director at Ministry of Economic Development (MED) with responsibility for IPR within GNZ along with Paula Wilson, Deputy Director for Trade Negotiations at MFAT, and was given assurance that the government remains committed to redrafting Section 92A. Embassy will continue to stress with GNZ officials the need for a shorter rather than protracted timeline for the redraft and will ascertain the details of a notice and comment period for public submissions once released by GNZ. During this hiatus we've proposed holding DVC(s) between NZ and U.S. interlocutors to possibly help with drafting and as a public diplomacy tool to dispel public misperceptions about proper role of IPR protection. U.S. agencies have the benefit of 10 years worth of experience in enforcing the U.S. Digital Millennium Copyright Act that may serve useful to New Zealand officials in their effort to implement section 92A.

What's most hilarious about this is the fact that the embassy is citing the DMCA as a ten year success. Bruce Lehman, the architect of the DMCA, acknowledged as far back as 2007 that the DMCA was failure where blame solely rests on the shoulders of the RIAA for failing to adapt to a modern marketplace. It's very unnerving the idea that not only was the US basically lobbying New Zealand to implement very bad laws, but also citing unrelated examples and casting failed policy as success stories. It defies logic. By May, another cable showed that the US was working with the MPA and other players to try and force the issue of passing a three strikes law:

Econoff learned from Tony Eaton of the NZ Motion Picture Association (MPA) that Minister Power met on May 12 with Eaton, Campbell Smith, CEO of the Recording Industry of NZ (RIANZ), Brett Cottle, CEO Australian Performing Rights Association NZ and lawyers from the Copyright Division of the Ministry of Economic Development (MED) to discuss Power's three-step plan to re-draft and enact section 92A by end of 2009.

Apparently, the three step plan was already hammers out. The first step would be to put together a preselected panel of copyright law experts they deem worthy of redrafting the law. The second step "will be a consultative period among MED, the IPR rights holders and the NZ telecommunication firms (i.e., the NZ internet service providers - ISPs) to be concluded no later than September 2009." The third step would be to implement the recommended content to 92A. In essence, it sounds like they wanted to stage something that seems impartial so as to make the process seem more legitimate. Would government officials implement different policy if somehow the policy recommended was different than the three strikes law? Doesn't sound like it:

Minister Power has made it clear to MED officials and to industry reps that the GNZ has no intention of going back on its commitment to strengthen NZ's copyright regime. He expressed privately that he wants to avoid some of the hysterical public reaction that accompanied the last attempt to revise S92A. His plan looks to be well thought out and with the input from a panel of top IPR experts the new provision will avoid the earlier criticism of poor draftsmanship. The Embassy in the meantime has repeated its offer of assistance to GNZ officials to offer consultations with USG copyright experts through a DVC.

In short, if you criticized the three strikes law, you were simply being hysterical. Overall, if you opposed the law, you seemed to be looked upon as merely an opposition force. The good news is, the citizens of New Zealand were not alone with receiving this kind of attitude from their own government. Just look at the attitude given to Canadians when they discovered that they didn't like what they saw in the copyright laws being pushed by American interests. Overall, I think it is infuriating the way the US has conducted themselves on copyright on the international stage. In New Zealand, they are even pushing the country to implement laws even the US wouldn't dare pass themselves because of it's over-restrictiveness. I think Americans would be equally offended if, say, Chinese diplomats went to the US and dictated what laws should be passed on, say, internet laws for instance. If the US government wants to know why there is so much resentment directed to the US, maybe they should look at how the US is dictating law-making in other countries as one example why people in other countries are so fed up with American influence in the first place. With revelations like this, you'd think that governments all over the world exist only to pander to US interests at the expense of their local populations. I think, for many people in countries outside of the US, it should be shocking how little governments utilize their sovereign rights to control what goes on in their own countries. I'll be blunt on this matter. If the US waltzes in to your country and demands the country implement a three strikes law, do yourselves a favour, grow a spine and tell the US to "[insert adjective here] off". [Special thanks to Michael Geist for gathering these cables] Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

HADOPI Blamed for ISP Rate Hikes in France

Drew Wilson — Sun, 02 Jan 2011 00:23:19 +0000

The goal of The High Authority for the Protection of works on the Internet (HADOPI) is to stop piracy, but French internet users are learning that the only thing HADOPI has effectively stopped is low rates for an internet connection. "Free", one of France's largest telecom company admitted that ISP rate hikes were "inevitable".

If you are reading this news story and reside in France right now, be prepared to pay more for the connection to view these articles. That's according to Free (Google Translation), one of the largest ISPs operating in France. The three strikes law is now being blamed for the increase in rates. One package was cited as an example. Before the new web laws took effect, users paid €29.99 (About $40.06 US). The rates went up by €5.99 to €35.98 (about $48.06 US) after HADOPI became law. A central point in all of this was explored back in August last year when it was discovered that HADOPI would cost nearly €50 million or nearly $64 Million per year (authors note: to replicate the '€' on a US keyboard, hold "alt" and type 0128 on the numpad with num lock turned on). Later on, we found out that such a figure was actually conservative and costs could be way higher. ISPs and the government were locked in a fierce debate over who should pay for it. While, by law, the government said it would pay for it, some are saying that the French government is doing what it can to delay payments, thereby forcing the ISPs to foot the bill in the end. More recently, we learned that record labels were upset that the government wasn't warning all 50,000 users each day and that the government is trying to get all the way up to warn up to 10,000 users per day. HADOPI defended these actions by arguing that HADOPI isn't set to auto-pilot. Currently, some suggest that HADOPI is only currently warning 2,000 users per day. What's ridiculous is the fact that, now, those who aren't pirating material are also being punished for these laws as well. Meanwhile, pirates are migrating to more secure sources, so the only people HADOPI is really punishing are non-pirates and pirates who don't know what they are doing. I would submit that this is just another sign of just how broken HADOPI really is. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.

Wikileaks: MPAA, RIAA and BSA Lobbied for HADOPI

Drew Wilson — Sun, 19 Dec 2010 21:30:44 +0000

Wikileaks has been releasing plenty of new details on how the US views the world. Amongst the interesting tidbits of information buried inside Cablegate was what role the MPAA, the RIAA and the BSA has in France's new HADOPI law.

HADOPI has had a long and winding road, but it seems new details have surfaced as a result of Wikileaks Cablegate story. In one cable [reference ID 09PARIS559 ], US diplomats described the defeat of the bill back in early 2009 a "theater-of-the absurd parliamentary maneuver" It turns out, the MPAA (Motion Picture Association of America) and RIAA (Recording Industry Association of America) were very concerned about the bill. US diplomats said, "U.S. industry continues to watch the bill closely. Motion Picture Association of America (MPAA) President Robert Pisano told the Charge on March 20 that the graduated response law is "very important" to the fight against online piracy, and to MPAA. The Recording Industry of America has expressed similar sentiments." The BSA (Business Software Alliance) also had a stake in the bill, but expressed concern with article 15. The cable describes, "That article, which industry has contested since its inception, requires firms to provide source code of software that includes technical protection measures to the French authorities. Originally introduced as an amendment from the National Assembly floor, the measure was designed to address spyware concerns (reportedly in the wake of the 2005 Sony rootkit scandal in which Sony had sold CDs in the United States with copyright protection measures that installed onto users' PCs and enabled remote monitoring). Article 15 has neither been enforced nor the subject of implementing regulations since the Copyright Law was passed." What's interesting in all of this is that the industry had such influence in the passage of HADOPI considering that the United States doesn't have a "three strikes" law of its own. It confirms that the US industry is trying to use France as a petri dish for anti-piracy laws so draconian, it couldn't even be implemented in their own country. What's also interesting is the number being projected: "Culture Minister Albanel has told the National Assembly Cultural Affairs Committee that, under a worst-case scenario, the HADOPI would be sending out up to 10,000 letters a day. If the same user is caught a third time, his or her Internet connection will be suspended for up to one year." It's interesting that the 10,000 letters does exist, but is only a worst case scenario. This is slightly higher than an earlier number which pegged the number as 13,000 letters per day. In spite of the lower number, HADOPI "will have a 90 million euro budget to contact, warn, suspend and deny Internet access" which is far lower than our previous number of 45 million euros. This means that this legislation is far less efficient than previously thought. According to Le Monde (Google translated:

The Embassy also worked in constant contact with major industry associations American show business, including the MPAA (Motion Picture Association of America) and RIA (Recording Industry Association). The vote of the web laws was for them a "very important priority", especially since it could serve as an example for other European countries.

What's absurd in all of this is the fact that US industry is directly influencing policy making abroad. It's particularly disturbing because it has been shown that a three strikes law implemented anywhere is even a national security risk because the intelligence community knows full well that a crackdown of this nature will make it much more difficult for spies to go after people who are considered a threat in the first place. I think that Americans would be very upset if a corporation from abroad came to the United States and started pushing to have certain laws passed that probably wouldn't benefit the United States. At the same token, I think French citizens would have every right to be upset if foreign corporate entities started meddling in their affairs as well. Have a tip? Want to contact the author? You can do so by sending a PM via the forums or via e-mail at drew@zeropaid.com.