February 17, 2009 | By Danny O'Brien

New Zealand Goes All Black Against Three Strikes

Whether you're following a New Zealander on Twitter, or have friended a Kiwi on Facebook, you will not have missed Net users from that country protesting Section 92A in NZ's new Copyright Act. Thousands are turning their sites and their icons black to mourn the coming enforcement of the provision, which passed last year over the protests of ISPs and technology experts and activists.

The language of New Zealand's new copyright law is flawed for the country's Net users; but how it is being interpreted is also bad news for other countries, whose lawmakers might be influenced by the extreme position NZ's politicians and ISPs have wandered into.

Section 92A comes into force on February 28th, and states:

(1) 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.

(2) In subsection (1), repeat infringer means a person who repeatedly infringes the copyright in a work by using 1 or more of the Internet services of the Internet service provider to do a restricted act without the consent of the copyright owner.

This isn't an entirely original framing of ISP duties. The chances are that this language was taken from the United States' very own DMCA, which in 512(i)(1)(A) states:

“The limitations on liability established by this section shall apply to a service provider only if the service provider— (A) 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”

But New Zealand experience demonstrates the dangers of simply adopting language from other countries without including a wider context. "Repeat infringer" in the DMCA is a term that was not defined in the law itself, and remains contentious here in the United States. Legal experts like David Nimmer have argued that "repeat infringer" means what it says: someone who has been repeatedly shown in court to have infringed, not simply accused of multiple infringement by rightsholders. There's certainly no universal acceptance in the home of the DMCA that rightsholders can force ISPs to throw US subscribers offline simply because they've been on the receiving end of (often inaccurate) notices by those same rightsholders.

The New Zealand law doesn't clarify that element of "repeat infringers."1 In their draft Code of Conduct, New Zealand's ISPs have defensively accepted the widest possible interpretation, and conceded that they must take a "three strikes" response to rightsholder's accusations, rather than actual court convictions.

The truth is that lawmakers in New Zealand were aware of these problems, and tried to stop 92A from becoming law: the legislative select committee that scrutinized the draft bill, for instance, removed the language before presenting it to Parliament (it was re-inserted by the government before the vote).

It's understandable that New Zealand Net users should be angry at their new law and how it is now being interpreted. We can only hope that their protest changes not only their own governments' position, but also clarifies just how radical and unwelcome the New Zealand interpretation would be in other countries.

To find out more about the protest and how to join, see the Creative Freedom Foundation Internet Blackout Page.

  • 1. Although 92A(2) does eliminate one ambiguity in the US text: as Nimmer also noted, most movie and music companies have been accused of copyright infringment themselves on multiple occasions. Does that might make them "repeat infringers" under U.S. law? Under the extended New Zealand definition, RIAA and MPAA members would at least have the opportunity to switch ISPs between evading license deals and bilking musicians, and thus avoid being terminated for their shady past. Yet another reason to choose New Zealand for your next production.

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