Is the new copyright law a lose-lose proposition?

By Pat Pilcher

What do you get when you combine technology ignorant law makers, a twitchy movie and music industry plus the internet? If you live in New Zealand, you get an unworkable legislative mess that can only be described as a near total lose-lose situation for everyone.

Section 92A of the Copyright (New Technologies) Amendment Act, passed last year, takes effect on February 28 and will see copyright infringers (that is anyone downloading music, movies, books, computer software and anything else copyrighted that they haven't legitimately purchased) punished under a three strike system.

The first two strikes will see ISPs warning infringers they're breaking the law, and should they continue, the third strike will see them disconnected from the internet by their ISP.

As draconian as these measures sound, the illegal downloading of copyrighted content is theft. There's no simply justification for doing it, period. That said, it is possible that the law changes set come into effect in February to dampen the deluge of illegal digital downloads are likely to be largely ineffectual, and even more worryingly, will probably cause everyone involved a considerable amount of pain.

ISPs are likely to be the biggest losers under the new law.

Whilst the good news is that the amended copyright act will absolve them from the liabilities associated with pirated content crossing their networks or being cached on their servers, there's also bad news. Nearly every man, woman, dog, cat and canary in New Zealand is now online. Monitoring the gazillions of gigabytes entering and leaving New Zealand in order to effectively enforce the three strike system is likely to be extremely demanding both in terms of people resources and cost.

Making matters worse, terminating customer connections is also likely to result in a barrage of negative publicity, with ISPs incurring the wrath of both the public and the media.

Of even more concern, the new laws could also be abused by less scrupulous customers as a means of exiting their broadband plans without incurring any early disconnection fees, leaving ISPs out of pocket. For beleaguered ISPs who have no choice but comply, the new laws are simply a zero win situation that'll cost them both customers and money, as well as making them incredibly unpopular in the process.

Then there's us, the poor internet subscribers. With an economic meltdown, bid flu and yet another season of Dancing with Stars to suffer through, things are tough enough as it is, without being forced to take on responsibility for the surfing habits of teenagers, flat-mates, or even PCs (should they get infected with cybernasties such as Trojans or viruses) or unsecured Wi-Fi wireless to ensure copyrighted materials aren't illegally downloaded.

Under the new laws in February, many people could quickly find they're accused of illegal downloading, and could potentially lose their internet connection, even if they're not personally doing anything illegal. There's also a high likelihood that already stressed wallets could be hit by this law with ISPs left with little choice but to pass the costs of complying with the new law onto customers.

Businesses also stand to suffer. With growing numbers of both large and small businesses becoming increasingly reliant on the internet as their key means of doing business, serious economic repercussions are likely should the actions of rogue employees result in business having their internet connection terminated. In a nutshell, I'd hate to be the owner of a cyber café.

Last but by no means least there's the music and movie industry, the very people who lobbied for these laws in the first place. Given the sheer scale of illegal downloading already taking pace, it's probable that both ISPs and the government agencies charged with enforcing the new laws will struggle to catch more than a fraction of the overall number of illegal downloaders.

Should law enforcers develop more efficient methods of policing digital copyright infringers, I'd be willing to wager that downloaders will quickly find new ways to bypass detection with slower moving law makers and ISPs struggling to compete against increasingly nimble, tech savvy PC users as an unwinnable digital downloads arms race breaks out. Either way, copyrighted content will continue to be pirated and the movie and music industries still lose out on lucrative royalties.

As it stands the current situation looks pretty dire for an extraordinarily large number of people. Are there alternatives? Can this digital dust-up be avoided? The answers to these pressing questions can best be deduced by a brief history lesson as well as a brief look at what motivates illegal downloaders.

Illegal downloading really took off back in the 90's thanks to a programme called Napster which allowed internet users to easily search for and download high quality MP3 music.

Unfortunately Napster didn't take copyright into account and music industry lost money hand over fist as piracy rapidly took hold. Legal action from the music industry quickly ensured that Napster was shut down, but by then a multitude of Napster alternatives - that operated in a highly decentralised manner and could not be shut down - had already sprung up. Rather than embracing a Napster-like model, the music industry chose to chase downloaders down, with high profile cases of people being sued for large sums of money in the US becoming a commonplace occurrence.

For a while it began to look like sanity was going to prevail and the music industry began to back online music stores where music could be purchased and legitimately downloaded.

Unfortunately nearly all the music available was hobbled with embedded anti copying DRM (digital rights management) technologies that limited the number of music players the music could be played on as well as the number of times the music could be copied - even though the same music could be purchased on CD with no similar restrictions.

Whilst legitimate alternatives to illegal music downloading put a serious dent in music piracy, the lack of a copy protection free alternative meant music piracy continued unabated. This hopefully looks set to change thanks to last week's announcement by Apple that they were dropping copy protection on iTunes music, hopefully bringing this sorry tale of woe to a close after more than a decade of protected angst and legalese.

Now a similar fate awaits the TV and movie studios with ever increasing broadband speeds and constantly improving digital video formats making movie and TV show downloads a doddle.

Thankfully learning's can be applied from the music industry's blunders over the last decade. Rather than burying their heads in the sand, movie and TV studios need to move quickly to embrace the momentum developed by existing downloaders and bring legitimate, low cost alternatives to market.

Crippling video downloads through the use of proprietary formats and convoluted copy protection schemes needs to be skipped as they will most likely be circumvented and will probably hold back uptake of any legal video download services. Either way, offering a legit video download alternatives is bound to put a serious dent in illegal downloads.

Offering a carrot in the form of legal alternatives to illegal downloading and a stick in the form of tough yet practical and enforceable anti-piracy legislation are, however, only two pieces to the piracy puzzle.

Education will be a must as significant confusion exists amongst many less tech savvy internet users as to what is illegal and what is legit to download. Ensuring that any legal framework is sufficiently transparent in order that there can be no dispute as to guilt or innocence will also be vital.

Last but by no means least, any copyright legislation will also need to adhere to the principles that the accused is innocent until proven guilty. The amendments to the copyright act are at best somewhat vague and definitely don't adhere to any of the above.

Pat Pilcher is employed Telecom, but does not necessarily represent Telecom's views.

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