I had a client once that had a few tonne of raw fish sitting on the docks and urgently needed access to his email in order to know where and when to deliver it before it was spoiled. I was able to help him get access and everything turned out ok. If section 92 went through an ISP could be forced to cut a small business off and in a situation like I have described it would cost thousands of dollars and maybe bankrupt the business. Who pays for the losses? The media companies? How could one afford to sue them for these losses? Creating work for more lawyers is not a good reason for any new law.

It does leave the problem of who decides the proof is adequate to declare the accusation is false.
[It is interesting that the Select Committee discussed it, but then recommended deleting the provision instead of balancing it. Do you know why? SLF]

Yes, this is a very good idea. We’ve suggested that it could perhaps be as an extension in jurisdiction and powers to the Copyright Tribunal.

Then we could move the takedown provision from ISPs to the Tribunal so that they have that available as a sanction in addition to fines. This also works around the problem that S92A just talks about copyright infringement as if it were a black and white issue. S92A doesn’t allow distinguishing between the copyright infringement of a 13-year olds self-written Harry Potter story (which if considered a derivative work could be infringement) Vs. someone distributing thousands of movies and songs. A Copyright Tribunal could have appropriate punishment, measured sanctions.

Then, I think, we need to decrease the scope of ISPs to those capable of corroborating evidence. This is necessary as you’ll see from this site http://dmca.cs.washington.edu/ Mr Franks, as anyone can be framed for copyright infringement so corroborating evidence is required.

If we didn’t reduce scope of this laws definition of an “ISP” (which includes businesses, schools, hospitals, practically any shared connection) then the business compliance costs of corroborating evidence will be in the thousands. Just like how most phones don’t store who is using them, most network devices don’t store this. Our view is that upgrading network devices will be necessary or businesses face risk in at least two ways,

1. For many organisations disconnecting a staff member’s internet may be like removing their phone line, effectively firing the employee. While genuinely inappropriate use of company services should result in dismissal there are obvious problems if the employer is unsure of the evidence, and associated risks in employment law.

2. Organisations themselves are considered secondary copyright infringers under S92A as they allow or facilitate copyright infringement. Retaining an internet account when a staff member is accused of copyright infringement may result in legal action against the organisation for not being “appropriate”.

So I’m from this group called the Creative Freedom Foundation who are trying to suggest better alternatives to S92A.

I’m a Wellingtonian so if you’d like to talk about this sometime soon let me know Mr Franks.

Thanks,
[Well said. I hope your group is drawn into the reform process. Let me know if I can help, but this area of law is not my specialty. I watch such developments as another area where some respect for legal history and our heritage could have forestalled stupid law. SLF]

Why even raise this spectre?
[The point of compensation rules instead of prohibitions, or leaving no remedy, is that people take into account in advance the risks of having to pay compensation. Rights plus consequences is the fundamental equilibrium that makes freedom endurable. "Its too late" (often expressed as "fences at the top of the cliff, not ambulances at the bottom") is the slogan that justifies the "precautionary principle" the justification for most of the last three decades erosion of freedom. SLF]

Don’t pass the law. Section 92a is not only patently unlawful but also serves no purpose other than the vested interests of the music industry (which should not be confuded with the interests of the composers and performers).

Don’t pass a stupid law then add a layer of remedial processes that will serve no purpose other than to occupy already stretched resources.

You don’t need an ambulance at the bottom of the cliff if you don’t build a road into the void.