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New Zealand's Recording Industry CEO Tries to Defend New Draconian Law 269

Posted by ScuttleMonkey
from the embrace-your-customers-instead dept.
An anonymous reader writes "Campbell Smith, CEO of the RIAA equivalent in New Zealand, has written an opinion piece for one of New Zealand's largest daily papers, in which he tries to justify the new 'presumed guilty' copyright law. This law allows recording industry members to watch file-sharing activity and notify ISPs of users who are downloading material. The copyright holder can then demand that an ISP disconnect that user — without the user ever having a chance to demonstrate their evidence."
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New Zealand's Recording Industry CEO Tries to Defend New Draconian Law

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  • Re:Right to... (Score:2, Informative)

    by Anonymous Coward on Monday March 09, 2009 @03:01PM (#27124925)

    Apparently the law also specifies you have the right to confess your guilt, and pay your fine with a smile, also.

    There. See? Nothing at all to worry about. Everyone's rights are being respected.

    Nothing to see here people. Move along.

  • by tonyreadsnews (1134939) on Monday March 09, 2009 @03:05PM (#27124995)
    Not that I'm for this or anything, but the guy does mention the 2 checks in the system:

    The ISP would then contact its user and warn them that they were breaking the law, advise them not to do it again

    I agree with the proposition that users should be able to flag to an independent adjudicator anything they regard as mistaken evidence

    also, he mentions that it is the 'right holder' that identifies IP addresses through the filesharing system, not the governement or anything so I'm not sure how its "Big Brother".

    Having said that, I don't think its the appropriate way to handle copyright infringement.

  • by oodaloop (1229816) on Monday March 09, 2009 @03:14PM (#27125109)
    Mod parent up. I had an economist friend years ago who calculated what songs would cost on the radio per airing, and it came out to $.05USD. At that price, I would buy large quantities of music. As it is now, CDs are too expensive and so are mp3s on iTunes. Not that I would ever pirate music. On a completely separate subject, I like limes.
  • by Anonymous Coward on Monday March 09, 2009 @03:21PM (#27125221)

    Doesn't work. Much like when a record exec's kids were caught pirating, the punishment will be carefully avoided for them. No, this is a prison and system intended to control you and I in order to extract money for them. Thinking that the same standards of law might ever be applied to both groups is lunacy of the highest order.

    What would all that money and power be good for otherwise?

  • by Camann (1486759) on Monday March 09, 2009 @03:56PM (#27125807)

    Going to the source now: Source [legislation.govt.nz]

    The whole of "section 92A":

    92A Internet service provider must have policy for terminating accounts of repeat infringers
    (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.

    So basically all this adds is that, on top of what's already in place, if someone says you infringe more than once, then the ISP has to cut you off. Everything else already exists under the current law. I've tried looking but I don't see much in the way of what is "proof" beyond 92D:

    92D Requirements for notice of infringement
    A notice referred to in section 92C(3) mustâ"
    (a) contain the information prescribed by regulations made under this Act; and
    (b) be signed by the copyright owner or the copyright ownerâ(TM)s duly authorised agent.

    Maybe some lawyer can shed light on this, but IANAL.

  • by Anonymous Coward on Monday March 09, 2009 @04:20PM (#27126101)

    This is not an option - apparently only members of the RIANZ and affiliates can make the request. Indie artists are not protected by the new law.

  • by Anonymous Coward on Monday March 09, 2009 @04:30PM (#27126261)

    You can view it here [legislation.govt.nz].

    Hopefully this will clear up some questions and suppositions about what is actually changing.

      - Kiwi

  • by bpkiwi (1190575) on Monday March 09, 2009 @04:37PM (#27126371)
    Sorry, but this was blatent corruption.

    Section 92 of the copyright ammendment act was written at the prompting of the entertainment industry. It was then widely criticised during public review of the proposed law, and removed. But, surprise suprise, it was magically re-inserted after the public consultation period ended.
  • by DMalic (1118167) on Monday March 09, 2009 @04:41PM (#27126439)
    Yeah. After all, the MPAA violated copyright on by copying the movie "Steal this movie", and got off scott-free. Their defense? The action was morally correct due to their production of only one copy which was safely stored in MPAA vaults. From this, we can determine that there is one law for media industries which violate individual copyrights (which clean-stamp their own actions) and another for individuals who violate media industry copyrights. I'm sure that this realization does plenty to encourage individual respect for the law, yes?
  • by corrie (111769) on Monday March 09, 2009 @04:42PM (#27126459)

    You're making the mistake of believing the article. If you weren't someone's bitch, you would've found the actual law:

    http://www.legislation.govt.nz/act/public/2008/0027/latest/DLM1122643.html [legislation.govt.nz]

  • by Gible (526142) on Monday March 09, 2009 @04:57PM (#27126681) Homepage
    Worse, at the prompting of the US entertainment industry in order to obtain a dubiously valued free trade agreement.
  • by Jason Pollock (45537) on Monday March 09, 2009 @05:04PM (#27126757) Homepage

    There was a slashdot style Q&A with Mr Smi on a New Zealand IT forum:

    http://www.geekzone.co.nz/forums.asp?forumid=95&topicid=30765 [geekzone.co.nz]

  • Re:Heh. (Score:2, Informative)

    by KingJackaL (871276) on Monday March 09, 2009 @05:43PM (#27127221) Homepage

    They send most of their data nationally, as they all speak Japanese, and Japanese content pretty much all comes from... Japan. Australia and New Zealand are English-speaking countries, so most of the content we want to access is overseas (US, and to a lesser extent, Europe). Korea's similar - a very introverted culture as far as the rest of the world is concerned.

    Japan also has over 120 million people, New Zealand and Australia have around 4 and 22 million respectively. There's a simple economy of scale there - sure all of Japans metropolitan areas have 100mb Ethernet for cheap, but even their rural areas live on connections more similar to NZ/Aus.

    Some of the cities in NZ/Aus have some OK competition (parts of my city have 10Mb Cable available - although where I live I only have the option of DSL). But yeah, we're always going to be fighting our scale and where a lot of our content comes from.

  • by M-RES (653754) on Monday March 09, 2009 @05:44PM (#27127225)

    dra-co-ni-an adj. Exceedingly harsh; very severe: a draconian legal code; draconian budget cuts.

    I'd say it's fairly accurate to call laws that find an individual guilty until proven innocent draconian. The whole idea of a legal and judicial process is that guilt is not established until the summary of the court (or tribunal) proceedings and all sides have been heard. Normally police (in criminal cases) or solicitors (in civil cases) need to establish evidence to prove this guilt beyond a reasonable doubt, but this law allows 'rights owners' to merely suggest that someone has broken a law to have them denied of a service they have paid another company for.

  • by holloway (46404) on Monday March 09, 2009 @07:20PM (#27128171) Homepage
    Further, our Prime Minister John Key called it "draconian" on the radio.
  • by Jason Pollock (45537) on Monday March 09, 2009 @09:01PM (#27129149) Homepage

    It's important to know the actual text of the legislation:

    http://www.legislation.govt.nz/act/public/2008/0027/latest/DLM1122643.html [legislation.govt.nz]

    92A Internet service provider must have policy for terminating accounts of repeat infringers
                (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.

    The bits that are interesting are:

    1) The definition of ISP is anyone who provides access to anyone else - libraries, schools, businesses are all ISPs.
    2) There is no definition of "repeat offender"
    3) There is no definition of what is an acceptable policy.
    4) There is no punishment for fraudulent complaints.

    Add to that the TCF (large ISPs) draft policy:
    http://tinyurl.com/tcf-draft-pdf [tinyurl.com]

    which is a 4 strikes and you're out policy, with no ability to have the evidence tested in court.

    Now, initially the TCF policy stated that you could challenge the complaint and that would be the end of it - it was up to the copyright holder to pursue you further. However, the RIANZ then came back and said that they wanted to be the sole determiner of guilt.

    This law starts from the assumption that if the RIANZ says you are guilty of violating copyright, then you _are_ guilty, and you get a warning. Collect 4, and your internet connection is removed. Since they have to remove the connection of repeat offenders, it could be reasonable to expect to not be able to get another one (ref: Google and "Wise Beard Man": http://www.chillingeffects.org/weather.cgi?WeatherID=605 [chillingeffects.org] ).

    S92C, which covers hosts, is even stronger, you don't get any warnings. You have to pull the content, or you lose your connection instantly.

    Mr Smith, when asked, considers the Prince vs Baby video (
    http://www.youtube.com/watch?v=N1KfJHFWlhQ [youtube.com]
    ) as well as linking to the video to be a violation of copyright, and worthy of a notice and violation letter.

  • by garett_spencley (193892) on Monday March 09, 2009 @09:31PM (#27129391) Journal

    "The problem isn't copyright.

    Other than a few Cathedral/Bazaar types, few people advocate for the total abolishment of copyright. We don't mind paying a reasonable price for good recordings. We wouldn't even mind paying per-Listening if any suitable billing system could be contrived."

    The problem with copyright is that it benefits the distributors, which has never been the artists. Even with the Internet, copyright is never going to benefit the artists.

    To provide some context to my opinion, I am an artist. I own the copyright to lots of works. I've recorded an album. I've written short stories. I've created many paintings. You know how much copyright has benefited me ? None.

    In fact, WITHOUT copyright I would have the potential to benefit much more. Why ? Because if a radio station or a distribution company did not have to worry about copyrights and royalties I could get much more exposure, in theory. Of course it all boils down to whether or not my creations are any good. But copyright can not force people to pay money for bad music (all opinions about Britney Spears aside).

    The fallacy with the concept of copyright is that it confuses the creative genius with the entrepreneur. The VAST majority of artists do not create for the sake of profiting from their work. Sure, there is always the dream. The dream that we will "make it" and be famous rock stars playing for sold out shows and having hoards of hot groupies wanting to have sex with us and die at a young age from a drug overdose. But the minute you start talking business and economics with artists you destroy the entire process of "creating" for them.

    I'm in a unique position because I happen to be self-employed as well. But that hasn't enabled me to make lots of money from my work. Nor has the ability to maintain a monopoly on the distribution of my work ever been an incentive to create. The two have absolutely nothing to do with each other. Business and art are worlds apart. While I can not speak for all artists, I know that this is true for every single musicians that I have ever had to pleasure of creating with. Some of them are pretty good at making money playing shows or doing studio work for hire, but when it comes to writing their own material, to creating, the business side of it never enters into the equation (unless they're under contract, and that has arguably destroyed more creative minds than has helped - inspiration can not be turned on with a switch and trying to do so often results in writer's block which can financially ruin an artist who is under contract).

    The argument for copyright (for the artists' sake) usually boils down to this: morally speaking we don't want "greedy fat-cat rich capitalists" to be able to profit from our work without compensating us. While I can certainly understand this principle, I think that it would actually be in every artist's best interest to allow those entrepreneurs to do so. Why ? Because if the artist is lucky enough to get "picked up" and distributed, and the venture does well enough to earn the entrepreneur a profit, the artist is now famous. Without having to do a damned thing. Now, having the fame, the artist has been given a gift and can do with it as he/she pleases. They can package all of those songs that the entrepreneur is distributing sans-royalty, add a couple of new creations (one song, or some behind the scenes stuff or whatever) and then out-compete the entrepreneur. The entrepreneur has made a profit, the artist can now make a profit that he/she could not have made prior etc. Yet as long as the entrepreneurs has to worry about copyrights and royalties they will only concern themselves with those artists who are willing to enter into ridiculously one-sided contracts because the artist wants to get famous, nothing else matters.

    The Internet changes very little. Yes, it is WAY easier for an artist to earn him/her-self exposure on the Internet now. However, copyright does not help that at all. It hinders it. No website can put up music without the artist's permission. So exposure for new artists is still entirely limited by how business-savy and/or lucky the artist is.

  • by Tuoqui (1091447) on Monday March 09, 2009 @10:33PM (#27129899) Journal

    I see no reason why an ISP would be biased in the matter.

    Time Warner Cable is owned by Disney or owns Disney.
    Comcast owns Cable TV stations.
    etc...

    Now tell me if ISPs have no reason to be biased in a matter when they are both content producers and ISPs.

  • by zobier (585066) <zobier AT zobier DOT net> on Monday March 09, 2009 @10:33PM (#27129901)

    Without copyright, every artist would simply resort to live performances, and we'd have a situation where hearing our favorite music was a matter of being in the right place at the right time and paying a hefty cover charge, *every time*.

    Nice logical fallacy there. No, without copyright there would likely still be recordings of works (even if just live performances) which we could listen to whenever we damn pleased.

  • by wvmarle (1070040) on Tuesday March 10, 2009 @05:46AM (#27132153)

    Very interesting point of view you have here, it outlines a quite different business model than I am used to. A business model though that makes sense: about ten years ago I was quite involved in the local pop scene, and learned that many bands while under a record label were barely making any money from album sales. And quite some considered albums (and certainly singles) as pure promotion, not something you make money off.

    They made money off concerts fees, and merchandise sales during the concerts (t-shirts with the band logo usually).

    Some made money from albums, but even the better selling ones barely got an income out of it. It went all to the record company that made the investment in recording the album. Most bands even didn't care about it: they got famous, they got the gigs, made a reasonable income out of it (almost none would get rich). When Napster came along some bands even started promoting the use of this network, but that caused friction with the record company of course.

    The problem without copyright is how to make sure you can get back your investment on a recording. Studio time is still expensive, even though it's falling rapidly, recording an album is still quite an investment. Having copyright on the recording would guarantee a limited time (5-10 years is more than enough I think) to make up for your investment. Without copyrights the making of recordings I think will become really hard, and thus hurting the exposure of a musician. No recordings means no exposure.

    Where the business model should change is the freedom of the artist. I think it's kind of what you mean, but it's not written explicitly. The artists should not sign for a record label - they could create a song, and then sell/license the song to the record label: the record label then invests in the recording and promotion of the song (or complete album), and the artist is free to arrange their own gigs. Or maybe have the record company help with that, or a separate booking office.

    This won't work of course because of greed: artists will happily sign a seven-album contract because they think they will really make it. Only to be dumped after the first flops, and being unable to make more albums because they are still under contract. Greed - from the record label side but at least as much if not more from the artist's side - is why we have the current situation. And that won't change soon.

  • by Anonymous Coward on Tuesday March 10, 2009 @07:01AM (#27132533)

    Go look up SoundExchange then. Just because you don't believe it doesn't mean it isn't real.

  • by garett_spencley (193892) on Tuesday March 10, 2009 @08:14AM (#27132929) Journal

    "The problem without copyright is how to make sure you can get back your investment on a recording. Studio time is still expensive, even though it's falling rapidly, recording an album is still quite an investment. Having copyright on the recording would guarantee a limited time (5-10 years is more than enough I think) to make up for your investment. Without copyrights the making of recordings I think will become really hard, and thus hurting the exposure of a musician. No recordings means no exposure. "

    But the issue is that copyright does not ensure that you will get your investment back. It doesn't even help. At all.

    Let's say that I go into the studio and invest some money to record an album, and then some 3rd party business, without my permission, decides to copy it and distribute it.

    Scenario 1: They hurt me by taking credit for the work. They also hurt the consumers by misrepresenting the product. This is fraud and is very much illegal without the presence of copyright.

    Scenario 2: They are unsuccessful because no one likes my creation. Copyright doesn't make people like things. So even with copyright I would not be helped at all.

    Scenario 3: They are successful and make money through their venture. Lots of people like to consider this "stealing", since they're not compensating the artist. However, in actuality they have made it EASIER for me to recoup my investment by giving me new fans that I would not have had otherwise. As the artist, I will always have more credibility with fans than some 3rd party business. Yes, there are fans who just want a couple of singles for as cheap as possible. They will probably download the songs and not pay anything at all to anyone. The business who is distributing my work is probably selling to people who want large collections of songs by various artists. These people want to "discover" new music and these businesses provide them a way to do that. Furthermore, the business might be a big radio station who's DJ has found me and wants to share my work. With copyright he can't unless he contacts me first and gets my permission, the costs involved make it not worthy. Anyway these people who buy from the 3rd parties and not from me still help me indirectly by telling their friends about me etc. The "die hard" fans will always buy from ME because they want to get their work directly from the artist. They want the extra stuff that I bundle with my own CDs. These 3rd party businesses give me more of the die hard fans. Which always helps me. Copyright never helps me.

    With the presence of copyright, doors close. For the artists and businesses alike. The only people who benefit from copyright are big corporations who hold a massive portfolio of copyrights and want to keep out competitors. Those competitors actually INCLUDE THE ARTISTS THEMSELVES! In fact, the artists are the primary competitors because they can always outbid the big distributors to the die hard fans who want to get their material directly from the artist, complete with all of the bonus stuff that the artist is able to package.

Parkinson's Law: Work expands to fill the time alloted it.

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