13 reasons why the Infringing File Sharing Act is bad for you by Christopher Wood

, posted: 3-May-2011 19:51

See Christopher's original Facebook note here.

Many of you have been asking what the big deal is about the new copyright legislation (Copyright (Infringing File Sharing) Amendment Bill 119-2). Isn't it a good measure for stopping illegal downloads? The answer is quite clear: No.

First, in case you missed the news: http://www.3news.co.nz/Govts-Skynet-legislation-becomes-law/tabid/412/articleID/206882/Default.aspx

There are so many problems with this law. I've listed thirteen here. There are others more fundamental especially relating to what the law should be expected to achieve, the polarised debate over the intention of copyrights and what should be protected under them, which is a natural consequence of the birth of the information society, but that's a big subject with a lot of history (that I hope to write about some other time).

Some reasons are legal, some ethical, and some technical but nonetheless crucial:

1. Presumed guilty on accusation

Despite the revision committee trying to fudge the issue, this law does work via the presumption of guilt. If the accused party has had their 3 warnings and goes to the Copyright Tribunal, they have to give reasons why the warnings were invalid. But if the accused party is innocent, what reasons can they have, apart from "I didn't do it"?

Presumption of guilt is rife for abuse, as has happened overseas under similar laws. In the digital realm evidence is often very temporary, complex, and easily fabricated, so providing evidence of your innocence could be very difficult, depending on how much is required. Providing evidence of your guilt is almost as difficult, but why should that mean an advantage should be given to accusers? New Zealand intellectual property lawyer Rick Shera says the law is grossly unfair, out of place and unnecessary in this analysis: http://lawgeeknz.posterous.com/nzs-copyright-proposal-guilty-until-you-prove

When a new law contradicts the Bill of Rights it better have an extremely good reason... and protecting the entertainment industry isn't one.

How to prove you're not in league with scurvy ne-er-do-wells like this?

2. Unsupported accusations

New Zealand Judge David Harvey has noted that 30 per cent of copyright litigation fails due to a failure to prove ownership of copyright, or due to the copyright in question not being governed by New Zealand law. Yet this law encourages more copyright infringement accusations, and puts the onus on the accused to prove themselves. There is no penalty for making spurious accusations.

3. Stifled creativity and innovation

People are often accused of infringing copyrights unreasonably, for instance quoting a section of a work to comment on it, or for sampling or making a parody of a copyrighted work. This is why US law has the concept of "fair use" (https://secure.wikimedia.org/wikipedia/en/wiki/Fair_use) - in NZ it is called "fair dealing". The Creative Freedom Foundation, a charity representing thousands of Kiwi artists, has written a short explanation of copyright and how the new law will stifle creativity: http://creativefreedom.org.nz/copyright.html

Some copyright owners frequently make claims of infringement even when the use is fair because users are likely to forgo their use of the work rather than spend money defending themselves - see https://secure.wikimedia.org/wikipedia/en/wiki/Strategic_lawsuit_against_public_participation.

Even without accusations, creativity is stifled by laws like this. YouTube continually removes videos that have no right being removed, simply at the request of a copyright owner.

4. Disproportionate penalties

Firstly, if found guilty you could potentially be fined $15,000 for downloading a single song - there's no clarity in the law about what a appropriate fine would be. The purported cost of copyright infringement is very arbitrary: Overseas, people have been ordered to pay millions of dollars for downloading a small number of songs, for instance this mother of four charged US$1.9m for downloading 24 songs: https://secure.wikimedia.org/wikipedia/en/wiki/Capitol_v._Thomas

5. Insufficient warning

The minimum time between the first accusation being made your last strike is 20 working days. It could be easy to miss both warnings, there's nothing in the law about making sure you actually receive the notices. You could even go on holiday for a month, come back and find you have to go to the Copyright Tribunal for alleged file-sharing from a week before you left.

6. The law is ill-defined

I've already mentioned how the law doesn't define the level of proof required to rebut the presumption of guilt, nor how to determine fines.

The technical definitions are particularly useless. For instance, it defines file-sharing as where:

(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and

(b) uploading and downloading may, but need not, occur at the same time

Downloading from a network using a network? That's meaningless. Besides that, it is very loose, any internet activity could conceivably be covered by this. That's clearly not the intent. This kind of thing is very difficult to define - still, it needs to be better than this. There are other things such as the change from using the term ISP (Internet Service Provider) to IPAP (Internet Protocol Address Provider), a change which will become meaningless in the next few years as IPv6 makes everyone potentially an IPAP. So not only is it loosely defined, it's already outdated (this last would most likely would have been fixed if the law had gone through the proper process).

7. ISP costs

Compliance with this law is going to cost ISPs. Although accusers are required to pay ISPs a fee, there is no consideration for the capital expenditure required to setup the system. And they only have four months to get it up and running. This could be very significant for smaller ISPs.

So you can expect your internet connection to be more expensive than it would otherwise be.

8. Violated human rights

More importantly, your internet could be terminated. This law was passed just two days after Tim Berners-Lee (credited with the invention of the Internet) declared "access to the web is now a human right" (https://www.networkworld.com/news/2011/041211-mit-berners-lee.html). The UN has proposed that internet access should be a human right, and it already is in France, Finland, Estonia and Greece.

Terminating internet in response to infringing copyright is worse than the post office stopping deliveries to your house because you sent photocopies to someone. The earlier law was revised due to protests over internet termination. The new bill disables that penalty for the moment, however it can be re-enabled with an order-in-council, not needing any public consultation or parliamentary vote.

Which leads on to the problems relating to how this law came to be:

9. Political precedence of law ambush

Urgency is supposed to be for urgent issues. National has passed 17 laws under urgency in the last two years, most of them completely unjustified (http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10719268). The passing of this law without proper process sets a particularly bad precedent.

This law has made headlines throughout the tech world, along with comments on the sucker-punch nature of its passing, and how equivalent laws overseas have been pushing through in a similar way (eg. UK's Digital Economy Act 2010):

Groups like Creative Freedom NZ, which helped lead protests against the initial bill, were taken by surprise. "The item has been due to go through the house for a while now, but has been fairly low on the list," said the group. "We are surprised to find out that it is being rushed through under urgency, and we're not alone; MPs who have been involved in the process are surprised as well."


Using the Canterbury earthquake as an excuse to push through a law in response to the entertainment oligopoly complaining about supposed lost profits, is shameful.

10. Lawmakers who don't understand the law, let alone basic technical facts

Next, it was blatantly obvious that most of the voting MPs didn't understand what they were talking about. In what the National Business Review called "a debate that often sunk to almost surreal levels of technical ignorance", MPs made fools of themselves saying things like:

"It is really important to remember that file sharing is an illegal activity."


Katrina Shanks took the prize for worst speech. Jonathan Young made a joke:

"Do you remember the movie "The Terminator"? I'm sure that you do. And the computer system... yes... the computer system called Skynet that ruled the world. It's like the Internet today."


Oh the perfect irony of analogizing the internet-enabled masses as evil robot overlords, and the government and corporates trying to control the internet as underdog freedom-fighters...

Topping the irony charts was Melissa Lee. Her speech (http://www.youtube.com/watch?v=9IIyk1y9o_8) actually had an interesting point about how the multi-billion dollar Korean movie industry was made possible through blatant copyright infringement by the Chinese. Yet she then went on to talk about the damage done by lesser forms of piracy like file-sharing and how infringing copyrights is always an intentional illegal act. The kicker is, just hours before making her speech, she tweeted about a music compilation a friend copied for her! (https://twitter.com/melissaleemp/status/57764856488669184) When confronted about it, she replied that the songs were legally downloaded and paid for - proving that either she's a hypocrite, or worse, she doesn't know what the current copyright law is, despite voting on the law, and holding herself up as an example of an unintentional pirate.

Then there are the technical issues with copyright enforcement:

11. Trojaned machines

There are millions of computers infected with viruses which hackers use to do whatever they want - for instance, sending spam, hacking more computers, or sharing copyrighted files via file-sharing networks. (Yet another reason to make sure you install your updates and don't visit dodgy websites or install untrusted applications - not that this is proof against hackers, it just makes exploits less likely.) You should not be held liable for what a hacker does with your computer without your permission. But how can you prove you were hacked? Viruses can remove themselves after acting. And if being hacked is a reasonable defence, pirates can use it as a defence too, just by claiming it or perhaps purposefully allowing themselves to be hacked. (Now there's an interesting new reason for hackers to make viruses: a viral file-sharing network, where some people would be users without their permission - thus giving plausible deniability to all users.)

12. Shared connections

How can copyright holders identify people who infringe? One way is through file-sharing programs where users have accounts. It may be possible to track these to a person in New Zealand. But most piracy isn't done through any account except an internet account. Most internet connections are shared between many people. So how would copyright holders know which person to accuse? They can't. Your ISP can only trace web traffic to your router (often only with a lot of work) - they can't see where traffic goes after that. So the copyright holder can only accuse the account holder. So if your flatmate infringes, you might be the one having to prove your innocence. Likewise companies have to take responsibility for all their employees - an excellent encouragement for companies to enact draconian firewalls against their employees. When an employee is accused, it may take a great deal of effort to track down which employee it was - if it is even possible. Similarly with any company providing a connection, like hotels, caf?s and airlines.

Expect company-provided internet access to be more restrictive and better monitored.

13. Real pirates don't get caught

The most problematic pirates - the ones who upload unreleased movies or sell pirated copies - are very unlikely to be caught. They use anonymizing techniques and encryption to make their downloading untraceable. The same goes for hackers or anyone with the technical know-how. Or anyone connecting via an internet hotspot or public wi-fi. Or those who just download without using peer-to-peer software. So those caught are much more likely to be accidental and small-scale infringers, not those the law is primarily intended to stop.

The Copyright Tribunal will have only 5 people, so it can hardly handle a large number of cases. A small number of unlucky people will be made an example of, which will dissuade the most casual pirates - i.e. the kind of people whose piracy probably earns creative industries more in advertising than they lose in profits (but that last part is an argument I don't have space to explain here).

That's 13 reasons why this new law is bad and why law-abiding citizens will be worse off under it.

You, accused of infringing copyrights under the new law

What you can do

There's a list of ways you can protest the law at: https://www.facebook.com/notes/opposing-the-copyright-infringing-file-sharing-amendment-bill/information-on-what-you-can-do-to-help/141454075923884

from Marko Simich http://www.facebook.com/profile.php?id=100000641193889, used without permission

I'm tempted to change my name on Facebook to "John Connor"... but I've settled for merely changing my profile pics...

Other sources


OK that's ridiculous, I really need to setup a blog... Facebook notes are painful...


I couldn't resist using the word "sucker-punch" :P https://www.facebook.com/photo.php?fbid=10150146767961160&set=a.446831791159.246947.545581159

Published 21 April.

EDIT 25 April 23:00: Added several sentences to #6, including note about ISP vs. IPAP.

UPDATE 3 May 19:14: The Ministry of Economic Development has released a document seeking input on improving some parts of the act, and revealing even they are confused about what constitutes "file-sharing": https://www.facebook.com/notes/christopher-wood/ministry-of-economic-development-is-confused-about-the-new-law-help-them-out/10150176923503926

Other related posts:
Video: Kim Dotcom and Mathias Ortman at the IITP Mega breakfast
Two-factor authentication broken
The problem with naming and shaming

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