New Zealand P2P proposal: guilty until proven innocent

New Zealand P2P proposal: guilty until proven innocentSay you have a DSL connection at home. Should you be liable for big fines over infringements committed using your connection... even if you had nothing to do with them? And should rightsholder complaints carry the assumption of accuracy? New Zealand politicians say yes.

New Zealand is taking its second attempt at clamping down on illicit peer-to-peer file-swapping. The first time around, in 2009, the country's legislators had to scrap their Internet disconnection plans after a public outcry over its "Guilt upon accusation" approach. But their second attempt is already stirring up the same complaints.

This time, the anti-P2P regime is based on big fines of up to NZ$15,000. The fine isn't designed only to cover compensation; as a parliamentary committee report (PDF) said this week, "For the regime to be effective as a deterrent against illegal file sharing, we believe it is essential that awards be designed not merely to recompense rights holders for the value of the song or movie illegally downloaded, but also to include a punitive element."

Such fines would be levied by a Copyright Tribunal after a particular account holder racked up several notices, and these notices would adopt a "guilty until proven innocent" approach. As the committee report puts it, "an infringement notice establishes a presumption that infringement has occurred, but this would be open to rebuttal where an account holder had valid reasons, in which case a rights holder would have to satisfy the tribunal that the presumption was correct. We consider that such a change would fulfill more effectively the aim of having an efficient 'fast-track' system for copyright owners to obtain remedies for infringements."

It's hard to argue with the logic of speed here; creating a presumption of liability certainly will "fast-track" the process, though concerns about accuracy remain. As a New Zealand legal blogger noted this week, almost one-third of all New Zealand copyright litigation fails because rightsholders can't actually show they own the copyright and that the copyright is governed by New Zealand law. And Google has previously indicated that large percentages of the infringement claims it routinely receives are defective in some way.

InternetNZ, which runs the top-level .nz Internet domain, said in a statement that the new presumption of liability "reverses the burden of proof in the regime by saying that rights owners' notices will be considered conclusive evidence of infringement, with alleged infringers having to prove they have not done so. This reversal of proof is not a welcome development, and our initial view is that it should not be passed by Parliament."

The new proposal applies to every Internet account holder, regardless of whether they actually did the deed. This is bad enough in household situations—see the recent German case where a 16-year old shared a couple of German metal songs and the music publishers went after him and his father—but it's far worse when applied to businesses, libraries, and colleges. Imagine your small business getting hit with a big fine because Bob in accounting installed a BitTorrent client on his machine during lunch hour.

"We considered carefully whether some account holders—for example, libraries and universities—should have an exemption or defense on the grounds that they did not have control over an infringer," said parliament. "We rejected such an approach as we consider it important that all account holders take measures to ensure that infringing file sharing does not occur on their account."

Internet accounts won't be disconnected, though, at least for now. If the fines don't have the desired effect, the law does allow the government to implement disconnections in the future.

The Green Party objected to this idea on the grounds that termination is "disproportionate to the problem and would not solve it," and the new bill "is just a delay in implementation of this ill-considered remedy... Citizens are not denied the right to use their telephones because they happened to be used in the commission of a crime, and this legislation should not set any precedent."

Source: ars technica

Tags: Internet, P2P

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