Pat Pilcher: Sanity prevails - RIP Section 92A

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Like a Mainland cheese advert, good things can take time, and in the case of Section 92A of the Copyright Amendment (New Technologies) Act this was definitely the case.

Anyone with half an ounce of common sense and a small amount of grey matter was aware that combining tech ignorant law makers, a twitchy movie and music industry plus the internet was always going to be a messy affair and, worse still, a complete lose-lose situation.

To quote the legislation in question, Section 92A of the Copyright (New Technologies) Act required that ISPs "adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account of a repeat infringer".

In other words after three uncontested copyright infringement accusations, your internet connection was effectively toast.

Unsurprisingly, ISPs were looking to be the biggest losers. Monitoring the gazillion gigabytes of data entering and New Zealand every minute of every day under Section 92A wasn't only going to be an extremely demanding task, but also a costly one.

Terminating infringing customer connections wasn't only business suicide, but would also have resulted in huge amounts of negative publicity for ISPs.

Internet subscribers were also to be stuck with responsibility for the surfing habits of anyone using their internet connection (e.g. teenagers, flat-mates, or even unsecured Wi-Fi wireless routers) to ensure copyrighted material wasn't illegally downloaded over their internet connections.

Making matters worse, the already stressed wallets of consumers would also been have been hit as ISPs were left with little choice but to pass the costs of complying with Section 92A onto internet subscribers. Not good.

Then there was the music and movie industry, the very people who lobbied for these laws in the first place. The massive scale of copyright infringement already taking place meant that both ISPs and law enforcement agencies charged with enforcing Section 92A would have at best been able to catch little more than a smidgen of the overall volume of copyright infringers.

Even if more efficient methods of policing digital copyright infringement were bought into play, downloaders would've quickly found new ways to bypass detection, leaving slower moving law makers and ISPs fighting an arms race they could never win.

Either way, copyrighted infringement was going to continue unabated and the movie and music industries were still going to lose out.

Thankfully it appears that sanity has finally prevailed in the form of John Key, who announced the Government is to scrap Section 92A and start afresh. Now it appears the Minister of Justice, Simon Power and his officials will rewrite section 92A from scratch.

So the big question becomes one of now what?

Any re-write of Section 92A will need to take several key issues into account.

Perhaps the first and most important, is the issue of justice. Where Section 92A effectively saw accused parties being treated as guilty of copyright infringement from the get-go, any replacement legislation will need to take the concept of innocent until proven guilty on board if it is to have any buy-in with the general public.

Secondly, a careful system of checks and counter-balances will also be needed to ensure that ISPs and law enforcement agencies don't get bogged down in a mire of vexatious infringement accusations as has happened in other countries.

Last but by no means least, representatives of copyright holders and the Government will need to provide legitimate alternatives to illegal downloads. Who knows, if enough legit alternatives appear, the need for such controversial legislation might eventually disappear.

Disclosure: Pat Pilcher is an employee of Telecom. However his views do not represent those of Telecom.

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