Mass internet black-out in blog protest

By Pat Pilcher

Today political bloggers from all sides of the political fence have taken blogs down to protest Section 92A of the Copyright Act.

Some big name blogs are taking part. Public Address, Scoop, Kiwiblog, The Standard, No Right Turn, Frog Blog, Whale Oil, Not PC, No Minister, Just Left, The Hand Mirror, Roar Prawn, Policy Net, Kiwi Politico and a multitude of other sites including Scoop News, PublicAddress.Net, Throng, GeekZone, and Street Talk have shut their doors in protest.

Instead of their usual coverage, visitors to these sites will instead be pointed to the online petition organised by the Creative Freedom Foundation.

So what's the fuss all about? Section 92A which comes into force at the end of February requires that ISPs implement policies for warning and ultimately disconnecting internet users accused of copyright infringement.

Critics of Section 92A argue that there is a raft of issues likely to affect a large amount of people. Compliance costs to ISPs are likely to be high, and it is possible that these costs could be passed onto internet users. The validity of accusations is likely to be suspect at best, with researchers at Washington University proving that copyright infringement notices in the US are easily spoofed.

Then there's the guilty until proven innocent aspect of the codes of conduct likely to stem from ISPs complying with Section 92A.

Being innocent until proven guilty in a court of law is a cornerstone of all western democracies. Not with the codes of conduct expected from Section 92A.

New Zealand could be on the way towards something more sinister with detractors stating that enforcing Section 92A will be tantamount to guilt on accusation and that the lack of any trial or accountability for accusers will make it a human rights fiasco.

You'd think that when presented with such a large amount of opposition, politicians would at least sit up and take stock. Never underestimate the stupidity of elected officials. Now it appears that even though nearly all experts involved with the act were largely ignored by politicians.

When the original Copyright Amendment (New Technologies) bill was put through parliament, it contained Section 92A. In a rare fit of common sense, the Select Committee removed Section 92A, saying:

"...We recommend that new section 92A (clause 53) be deleted as the standard terms and conditions of agreements between an internet service provider and its customers usually allow for the termination of accounts of people using the services for illegal activity. Moreover, new section 92C already requires an internet service provider to delete infringing material or prevent access to it as soon as possible after becoming aware of it."

That should have been that, but the then minister of Arts, Culture and Heritage, Judith Tizard bizarrely re-introduced it, saying that "... it adds a requirement that an internet service provider (ISP) must have a policy for terminating the accounts of repeat copyright infringers"

Given the sheer potential for mayhem that Section 92A looks set to create, you'd think that there would have been more consultation, even some name-calling in the parliamentary debating chamber.

In fact there was no arguing, no disputing the logic of the Select Committee or the advice of the independent reviewers employed by the Select Committee.

Worse still, the submissions to the Select Committee shows that the politicians also ignored the advice of their own experts.

Copyright lobbyists, RIANZ (the recording industry association of New Zealand) made a submission supporting Section 92A, saying that "...section 92A (relating to a policy for dealing with repeat infringers) requirement is appropriate and is supported."

Whilst RIANZ's submission in itself isn't surprising, the response to RIANZ from political officials was: "Disagree. ISP standard terms and conditions generally already allow for the termination of accounts of people using the ISP's services for illegal activity, and section 92C already provides for removal of infringing content. There is no clear need for a further requirement for termination of accounts. It is recommended that this clause be deleted."

Given the degree with which this view differs from those their elected masters, it is probably fair to say that not only did the experts (who had already spent a fair amount of time assessing the need for and likely impacts of Section 92A) want it gone, they were also ignored by politicians (who had probably done very little research into the impacts of Section 92A but clearly had reasons for wanting the act bought back into play).

Which brings us to the current situation. With Section 92A still looming large at the end of February, today's blog and website blackout is the latest of many protests from up and down New Zealand and across the political divide.

Ms Tizard and the rest of Labour may have been bounced out of power, but bizarrely National are dishing out more of the same, refusing to repeal the act even though it is widely agreed that the act will be costly for ISPs, be unenforceable and probably won't work.
A sense of fair play has always been a big part of New Zealand's democracy and now this is looking increasingly shaky with politicians bow to lobbyists, ignoring the advice of their own experts to introduce shonky legislation that tramples over commonly held democratic notions of innocent until proven guilty.

Sanity has already prevailed in most other nations, who've wisely decided that similar copyright legislation was simply too difficult and negatively impacted on human rights.

Pat Pilcher is employed by Telecom, but does not reflect the views or opinions of that organisation.

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