Three Strikes Encounters Political, Netroots Opposition Down Under
Three Strikes Encounters Political, Netroots Opposition Down Under
Three Strikes Encounters Political, Netroots Opposition Down Under

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    As you may have heard, the citizens of New Zealand are mere days away from a government mandate that has been interpreted as requiring ISPs to adopt a three strikes regime. Thanks to an amendment to the Kiwi Copyright Act, ISPs in New Zealand may choose to disconnect a user after receiving three notices from content owners that the user in question is suspected of sharing copyrighted material online. New Zealanders, however, aren’t going down without a fight. The folks at the Creative Freedom Foundation have started a netroots campaign, Internet Blackout N.Z, to allow the public to voice its opposition to what they’re calling the “guilt upon accusation” law. They’re organizing public protests all over New Zealand, “blacking out” Facebook, MySpace and Twitter account avatars as a show of solidarity and spreading the word through songs, videos and remix contests. They’ve even produced a video that uses kangaroos to illustrate what the three strikes law means in practical terms for the end user (warning: video contains strong language). The campaign will culminate with an Internet “blackout” on Monday the 23rd, whereby blogs and websites will “dim the lights” to draw attention to the fact that Internet connections across New Zealand could start going dark at the end of the month.

    Though the law is set to go into effect in just eight days, the mounting public pressure seems to be having an effect. A Member of the Labour party–the party that originally introduced the amendment–has acknowledged the public’s opposition to the law in Parliament and the ruling National party has been placed in the uncomfortable position of defending a law that was passed by their opponents. As one blogger puts it (via Boing Boing):

    It is interesting the breadth of opposition to this law. Many [supporters of the ACT center-right party] are aghast at the cost to business, the addition of another badly defined regulation. While many Greens and Labour supporters on the left are aghast at the threat to freedom of speech, and innocence until proven guilty.

    Given the poor optics, politically speaking, you would hope that the National party would come to its senses and clarify exactly what action ISPs are required to take in response to allegations of copyright infringement. The language in question–Section 92A of the New Zealand copyright act–states that:

    An internet service provider must adopt and reasonably implement a policy that provides for termination, in appropriate circumstances, of the account with that internet service provider of a repeat infringer.

    Look familiar? That’s because the above language is extremely similar to the following snippet from our own DMCA safe harbor provisions [U.S.C. §512(i)(1)(A)]:

    [The limitations on liability established by this section shall apply to a service provider only if the service provider] has adopted and reasonably implemented, and informs subscribers and account holders of the service provider’s system or network of, a policy that provides for the termination in appropriate circumstances of subscribers and account holders of the service provider’s system or network who are repeat infringers…

    In New Zealand, RIANZ (the Kiwi equivalent of the RIAA) has been pushing for the above to be interpreted to mean that ISPs should give users the boot after receiving three notices accusing a user of infringement. Sound familiar? That’s the same reading that the RIAA has pushed here in the U.S., with some success. The fact of the matter is that the language that’s being fought in New Zealand’s Copyright Act already exists in U.S. copyright law, though RIANZ has, admittedly, taken a harder line than the RIAA, publicly stating that it would be “impractical” and “ridiculous” for the organization to obtain actual proof of infringement in order to have a user kicked off of the Internet.

    Given that the New Zealand Copyright Act offers no guidance with regard to what, exactly, constitutes “appropriate circumstances” or “reasonable implementation,” all the government needs to do to protect its citizens is to amend the Act to clarify that accusations of infringement in no way compel ISPs to disconnect users and that a court, rather than a copyright holder, must determine the guilt or lack thereof of a “repeat infringer”.

    With any luck, the public outcry in New Zealand will be enough to put the breaks on this particular mandate. As I’ve explained before, there are plenty of reasons why a three strikes regime is a terrible idea. But don’t take my word for it: earlier this week, two academics at Oxford and Reading Universities in the UK released a report spelling out why allowing ISPs to enforce copyright law is, at best, ineffective and at worst, dangerous. Here’s hoping that paper makes it way to a few desks in the offices of New Zealand’s Parliament, before it’s too late.