Controversial copyright violator provision struck down in New Zealand

The world continues to wrestle with the problem of who is truly responsible for copyright infringement over the Internet, if it is allowed to persist. Over the years, Internet service providers have fought for, and won, protections from liability for the conduct of customers they can't always monitor. In the US, ISPs have an interest in limiting online file-sharing, mainly because the heaviest perpetrators are also the ones using the most bandwidth. Here, legislation under consideration by Congress would prohibit ISPs from taking bandwidth-throttling actions against customers based solely on their perceived online behavior.

But in New Zealand, the opposite approach was about to be tried and then, yesterday, failed in Parliament: A provision of an amendment to the country's Copyright Act, based on language that it appeared to have intentionally omitted, would have enabled authorities to instruct ISPs to disconnect customers on the mere suspicion of illicit file trafficking. That provision -- now known notoriously throughout the country as Section 92A -- was struck down yesterday, in a move that ended up being heralded by someone once thought to have supported the idea, Prime Minister John Key.

"There is a need for legislation in this area. Some progress was made between copyright holders and the ISPs but not enough to agree a code of conduct," reads a statement from the Prime Minister's office yesterday. "In our view, there are a number of issues that made it difficult to complete that code of conduct without fixing the fundamental flaws in Section 92A."

What was so controversial about the section, again, was what it didn't say -- effectively, how its economy of language would have forced ISPs to give lawmakers access to customers' off-switches. Here is the section in its entirety:

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

(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.

You'll note that "repeat infringer" is clearly defined as meaning something other than "repeat offender" means in US law -- not someone who's likely to repeat a formerly convicted offense, but rather an offense with more than one victim. So while the phrase may have appeased one group of citizens who may have thought the "repeat infringer" clause was a safeguard, Section 92A would have actually mandated that ISPs post a policy for terminating accounts under "appropriate circumstances" -- which critics charged could mean anything.

The uprising against the law was growing to a crescendo, leading to a possible nationwide boycott of Internet service, organized by a group calling itself the Internet Blackout. And one of the country's major ISPs, TelstraClear, had actually planned to defy the law if it had been ratified by Parliament, probably by not posting the requested termination policy.

Certainly this may not be the end of the legislation as a whole, just of the offending phraseology. As the Recording Industry Association of New Zealand made clear in a statement this morning, it plans to continue its push for legislation that makes ISPs responsible, if all it means is changing the language: "The government acknowledges that New Zealand's creative industries are suffering because of the impact of online piracy and it recognizes that ISPs should play a key role in helping to address the problem. The delay required to implement the government's decision to amend the law is obviously disappointing but that's a price worth paying if the result is clear legislation that effectively addresses the problem."