Archive for October, 2011
First a disclaimer:
While I’ve made every effort to make sure that this information is correct at the time of writing, I am not a lawyer, and this post should not replace solid legal advice. It is meant for educational purposes only.
This information is dependent on several sites that I’ve gleaned some of this information from and to changes in legislation over time.
What is it?
This is new legislation that makes it easier for Copyright holders to penalise people for copyright infringements via peer-to-peer file sharing. It is also referred to sarcastically as the 3-strikes law and the Skynet Law.
It came into force in New Zealand on 1st September 2011 (although data was allowed to be collected 21 days prior, no letters could be issued until this date) .
How do they detect infringements:
The most likely method will be by companies paid by the copyright holders participating in the pool or swarm of users that download the copyrighted material. When you use peer-to-peer networks certain information about your connection is shared with the other peers. This is primarily, your IP address. This can be linked to your Internet Service Provider and they can track which account was using a specific IP address at a specific time.
So Copyright holders will most likely pay other companies to join in on these downloads (legally, because they will own the copyright), record the ip addresses of others downloading the files and send notices to the ISP from there.
- Copyrighted material downloaded using Peer to Peer applications such as bittorrent and Limewire.
- material uploaded or downloaded from the Internet (and)
- using an application or network that enables the simultaneous sharing of material between multiple users.
What’s not covered?
- Downloading files straight from the internet – i.e. using file hosting services such as MegaUpload or Rapidshare. Technically, these sites are covered already under section 92c of the legislation – not part of this amendment.
- Streaming content from sites such as Youtube or Netflix.
- Content that is not copyrighted. In other words, peer to peer network applications are not illegal per se, it’s just downloading copyrighted material using these applications that is illegal.
- Mobile phones are excluded until 30 September 2013
- Content that was downloaded more than 21 days prior to 1st September 2011.
Who’s at risk
The account owner of the internet connection is liable.
An ISP can only trace an IP address to an account owner. Not a specific person using that particular connection. So if you have a family of 5 people, the account holder gets the letter, not necessarily the person who actually did the download. The same applies to companies offering free wifi, businesses with multiple users, schools, universities etc. Only the named account holder is liable for any fines regardless of whether or not that person actually downloaded any copyrighted material.
What is the process:
The basic process is that the copyright holder will detect that a particular ip address is downloading copyrighted material. They will send a notice to the ISP that the IP address belongs to. The ISP then looks up their records and forwards the notice on to the account holder.
You will receive 3 notices, each a minimum of 21 days apart. If you receive letters in 21 days between notices, they do not count as additional letters but can be used to calculate your fine after the 3rd letter. You can argue these letters but exactly how to do that is not clear as yet.
Show me the money:
It costs the copyright holder $25 to send a letter to an ISP. This is the fee agreed upon by ISP’s to cover the admin charge of looking up the account holder’s details at the time and for the ip address involved and sending them a letter. This charge is to be revised in March 2012 (6 months after the initial law came into affect). You receive 3 warning letters which must be at least 28 days apart. Any additional letters you receive during this time do not count towards your total of 3 warnings but can be used decide on your penalty after the 3rd letter is received. You can contest these letters after they arrive.
After you receive 3 warnings, you can be charged up to $15,000 for copyright infringement.
This law has been heavily criticised especially in the tech industry for the following flaws.
- Assumption of guilt. Letters are sent to the copyright holder and it is assumed that that person downloaded the copyrighted material. Even if there a number of users using that connection.
Has it worked?
To date: Not really.
Very few (if any) letters have been received by ISPs and passed on to users. Many believe that this is because of the fee that ISPs are charging the copyright holders and because there is no centralised procedure for paying these fees and distributing the letters.
Currently most ISPs are insisting that if a copyright holder wants to send them a letter, they must register an account with the ISP, pay the fee and send them the letter before they will process it.
It is said that various copyright holders are working on a centralised system to make this process more streamlined and to reduce the fee by making it easier for the ISPs to recieve the fees and letters. There is a built in review of these fees in the law 6 months after it comes into affect.
However, many ISPs saw a drop of around 10% in internet usage around the 1st September – some argue that this 10% drop was not necessarily all illegal file sharing but it does seem to be a co-incidence.
Recommended Further Reading:
01/11/2011 – The first wave of copyright infringement notices arrives – http://www.stuff.co.nz/technology/digital-living/5887377/First-copyright-infringement-notices-issued