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The Copyleftist

An on-going struggle against illegitimate authority, starting with a push for reform in the overly broad scope of intellectual property laws.
Apr 24 '10

Three Strikes Bill Passes NZ Parliament

I’m not surprised. I can’t even say I’m disappointed. I knew it was coming. No amount of reasoned argumentation can fight the tide of corporate money and lobbying.

http://torrentfreak.com/kiwi-3-strikes-anti-piracy-bill-receives-unanimous-support-100423

I could be shocked that every MP kowtowed to the industry, repeated their proven lies*, and pretty much managed to glorify this bill as the second coming of awesome even while it sets the citizens up to foot the bill of “piracy” enforcement.

* http://techdirt.com/articles/20100412/2346298988.shtml , http://techdirt.com/articles/20100419/1424349085.shtml

That doesn’t bother me so much. I’ve had time to come to acceptance. I don’t like it, but there’s not a lot I can do.

What does bother me is how people have come to so blindly accept this notion that personal file-sharing is equal to a criminal act. We’ve all seen the stupid ads, how “you wouldn’t steal a car”. The simple fact is that intellectual property is not a physical good and the analogy between the two is so flawed as to be unusable.

It seems to be accepted without criticism, the premise that file-sharing is a moral and ethical wrong. In reality, it’s only a legal wrong - and only that due to industry lobbying.

You wouldn’t have to go far to make the ethical argument that not buying from these companies is better than giving them money. After all, they contribute nothing themselves. We can’t forget that these companies are not creators and producers of works. They are distributors and promoters.

That alone is fine. Where they cross the line into becoming a net negative for society is in their ridiculous prosecution of this anti-piracy campaign. It’s not enough to find new and profitable ways to exploit the digital landscape; no, they have to use their considerable financial and legal resources to convince the world (or the lawmakers, at least) that they’re undertaking substantial losses all due to this new-fangled “internet” thing, allowing people to just come in and steal their property!

So we must crack down on this immoral and illegal act! Punish the file-sharers! Throw them offline! That way we can keep our centralized model of distribution in place, just how we like it.

To hell with that. You’re not owed a living just because you’ve always done it that way.

(An interesting footnote here: the music and movie industries were both founded on piracy. The music industry started up by violating patents on music recording technology, and the movie industry is currently in Hollywood due to patents on film recording technology which were in place in New York at the time. I don’t imagine they want most people to know that, though. So shhh!)

The question I have to ask is this: why is piracy among the youth such a horrible thing? Let’s look past the typical moral panic of such things. Why should I, as Joe Average, be worried about this?

Is it going to kill music? Doubt it, for two reasons. One, people will always make music. Or did music only come into existence in the mid-20th century, along with big record labels?

Two, the point the media companies have conveniently left out is that if they were to vanish tomorrow, they wouldn’t be missed. Artists, writers, musicians, all of these people could use the new internet tools to connect with their fans, to promote their works, market themselves, distribute their works, and get paid for it - all without the need for an anachronistic middle-man.

That’s why we see these laws. That’s why we see “piracy is wrong!” expressed as a normative statement, instead of a premise which can be empirically proven to be incorrect.

Which all brings me to the point. To listen to the MPs speak, you’d think that file-sharers are just pilfering money away from these companies as fast as they can. And of course, We Must Act! Certainly you can’t just allow people to go and take things!

Never you mind that the marginal cost of reproduction is zero and the original owner is not deprived of his possession, making file-sharing nothing at all like theft. You should also ignore the music industry’s own statistics showing that “pirates” are the most likely to actually purchase music.

You should certainly ignore the implicit assumption that each pirated file is one lost sale, because that’s the only way you can justify outrageous financial losses the industry claims.

If you point out that the music industry has seen its revenues grow, despite piracy and despite declines in physical CD sales, well, you’ll just be ignored. Facts have no place in this debate.

At least, that’s the message that we as citizens are given. If you point these facts out to the MPs, you get a nice dismissive letter that says, paraphrased, “we understand your concerns but unfortunately the music industry lobbyists pay more than you can afford.”

They’ll acknowledge each and every one of these issues, then talk out the other side of their mouths in support of industry desires.

I’m disappointed most of all in the interest groups that have rolled over on the matter and even celebrated this bill. Yes, it’s an improvement over the original s92A, but as I’ve said so many times, it’s the same kind of improvement as being punched in the mouth instead of being set on fire.

It’s better in relative terms. That doesn’t mean it crosses the line into “good” or “desirable” or “a net positive”.

As to the bill itself, I can summarize three main issues, in rough order of importance to me:

1. You’re creating a new cost for ISPs and wifi providers, and that cost will be passed down to the customers. And this says nothing about potential privacy issues.

The new bill requires internet providers to maintain logs of customer activity for 40 days, so that the precious media companies can have access to your internet traffic if they suspect you’re a dirty pirate.

Forty days of logs for each customer is no small order. That’s a lot of traffic to log and archive. Guess who’s going to be paying for that? Our internet bills weren’t high enough here, I suppose.

There’s still that murky area of wifi culpability as well.

Oh, and you better hope you don’t get accused, because you can expect all of your recent online activity to come under heavy scrutiny if you are. But if you’re doing nothing wrong, you have nothing to worry about citizen!

2. You’re creating a copyright tribunal to handle all of these complaints, and yet we’ve heard exactly nothing about what this will entail, regarding standards of evidence and valid defenses.

This is a tangled little knot right here, and you can tell because nobody’s discussed it.

The dilemma: I have a wifi hotspot in my home, attached to my internet account. It’s unsecured. A hacker or ne’er do well logs in to my hotspot, torrents a bunch of movies without my knowledge. Later I receive infringement notices and have to show up at the tribunal. I’m stunned, because I know nothing about it.

Is my defense of an unsecured wifi hotspot, combined with total ignorance of the matter, valid?

Change the parameters a little. My hotspot is secured by WEP, and a hacker cracks it (which is amazingly easy to do). Same scenario ensues. Is this a valid defense?

What about IP spoofing (http://dmca.cs.washington.edu)? What if someone frames me for infringement when I’ve not engaged in the activity? Is that a valid defense?

We have no answers for these questions! Why do I want to be at the risk of massive fines or losing my internet for six months with that sort of ambiguity?

The issue is more than a little troubling. If these defenses are valid, then the copyright tribunal is redundant; anyone aware of these issues has so many plausible defenses that there is no way to prove infringement.

If these defenses are not valid, then the tribunal is a sham and a rubber-stamp for industry interests, because there is no way to prove your innocence in light of accusation.

In that light, how does this even follow? It’s either pointless or a show-trial to rubber-stamp what the original s92A would have done in the first place, to give it a pretty sheen of due process while fast-tracking the industry’s wants.

Unfortunately I get the strong impression that our lawmakers are largely unaware that these are even issues.

3. You’re criminalizing a non-criminal behavior based on exactly nothing of substance, and at the behest of a private industry. 

I’m of the mindset that if you’re going to criminalize a behavior, you had best meet the burden of proof as to why that behavior is being outlawed.

Can the NZ MPs do that? If they can, they’re doing their best to hide their evidence. The industry’s own statistics have been called into question and ultimately they’ve been debunked.

So the obvious question: on what grounds are you justifying this?

And since nobody’s asking this question, I’ll ask: why is the law being written, in fact custom-tailored, to the specific needs of a private industry? Is it now the role of government to enforce the will of private businesses, to the exclusion of the majority of its own citizens? 

If any of these issues can be answered satisfactorily, I’ll change my opinion on this law. “Satisfactorily” means explaining the benefits to the average citizen (or for that matter, even to the average artist/musician/creator - file-sharing doesn’t hurt them) and how this actually meshes with democratic governance.

  1. copyleftist posted this
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