The Standard and s92a.

40 comments on “The Standard and s92a. ”

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1. Herbert. 1

   19 February 2009 at 7:37 pm

   Maybe we should hire a boat and pirate blog off shore – stuff big brother nutbar rules!
   12 mile limit here we come, haul the anchor Captain Freedom of Speech.
2. lprent 2

   19 February 2009 at 7:42 pm

   Thank you for those kind words Peter. But I suspect that Estonia or Canada sounds like a good location for the site.
3. ieuan 3

   19 February 2009 at 8:47 pm

   Is it really that hard to use material that is not copyrighted? Have you guys heard of istockphoto? For a couple of dollars you can download an image that is totally legal to use and the money goes to photographers who make a few bucks for their efforts.

   See that is really the problem with the internet, people think they can just help themselves to other peoples creative efforts and not pay anything.
4. lprent 4

   19 February 2009 at 9:29 pm

   Get real…

   Have a look around the posts here and see how many photos we use. Bugger all. Mostly we’re using graphics of various forms. Most of these come from other websites where we have seen them on something related. Half of the time the photo has a tangled provenance. Most of the time the stock images don’t have much that is relevant. For instance one that I used for Karst on Nuie would never be in any stock photo.

   We have lives outside of writing posts, and most of the time an image is to decorate the post.. It isn’t the point of the post. There are 15 odd writers here. Each picks their own images. The ideal would be to have subscription for the site. So look at the prices…

   IStock – min USD108/mo
   Getty images – $ 3,399.00 NZD (1 year).

   Frankly the images there are far too limited for our purposes.

   It costs more to do that than it takes to run the whole rest of the site.

   Of course we could spend more time to find the image than we do to write the post.. Yeah right….
5. the sprout 5

   19 February 2009 at 9:41 pm

   I wonder how long it would take for a rash of vexatious complaints to get the National Party website, the Parliament website, any government department website taken offline by their ISPs?
6. Joseph 6

   19 February 2009 at 9:43 pm

   ieuan, people will take what they want, don’t blame the tool for the users choice.

   How to explain the difference between CDs being stolen IRL, compared to music downloading. The fact that it’s so easy to copy music, at very little cost to the person doing it, compared to stealing a CD and getting shoplifting charges.Of course, stealing CDs is not the same as downloading music at all, because the CD maker doesn’t lose physical property. It’s not theft, and if it was, it would be charged as so.
7. lprent 7

   19 February 2009 at 9:54 pm

   ieuan: In any case it isn’t relevant for the thrust of my post.

   Even if I had complete rights to use a image, I’d probably have to go to civil court to establish the right if someone complains and the ISP shuts my links down.

   Basic economics…. $160+GST per month doesn’t leave any room for having humans look at legal issues… Tell me what the going rate is for a copyright lawyer?
8. ieuan 8

   19 February 2009 at 9:57 pm

   ‘Get Real’ is that all you’ve got?

   You guys were all over John Key for using ‘Clocks’ on a promo piece and yet when it comes to you guys its too hard.

   H-Y-P-O-C-R-I-T-E-S
9. lprent 9

   19 February 2009 at 10:05 pm

   Get real: Compare apples with apples. You are just being extremely pathetic.

   Unlike an overpaid PR company, we do not get paid for this. So you are comparing a company getting overpaid by National, who is in turn getting overpaid by their anonymous backers with what? A group of people who write stuff in their spare time.

   Not to mention the megabucks for printing pirated CD’s

   I’m perfectly willing to have someone tell me that something is copyrighted. We usually have a look around to see if it is. But there isn’t the money or time to do it for a site that is run in peoples spare time to spend hours looking for copyright violations.

   Now could you be a nice troll and go elsewhere… You don’t make any sense..
10. IrishBill 10

    19 February 2009 at 10:07 pm

    ieuan, whether we have the right to use the images we do is a case by case issue. Early on in the standard’s life we had John Key try to force us to remove an image of him that we felt was covered as fair use by way of it being used for parody.

    Under this law we would likely not get the opportunity to make our case. I would also point out that I was the one that broke the story of the misuse of clocks by national and my claim was borne out by the fact EMI made them remove it. They would have had right of reply. Under this law many internet users will not.

    Now, on the matter of pointless insults directed at the blog owners. You have had your last warning. Show some manners or you will wear a week’s ban.
11. ieuan 11

    19 February 2009 at 10:15 pm

    ‘Now, on the matter of pointless insults directed at the blog owners. You have had your last warning. Show some manners or you will wear a week’s ban.’

    Last warning? When did I get my first warning?

    Kind of ironic isn’t it considering the subject of your post.
12. lprent 12

    19 February 2009 at 10:36 pm

    This is after all our site. If I bothered to look back I’d bet that there are many warnings to you previously. The database would pull them out. I seem to remember issuing a few to you early last year myself. There are no time limits.

    Anyway you’re incorrect. This is dialogue. I could just add you to the spam queue – that would be a closer equivalent to a s92a action.

    But I suspect you don’t understand dialogue – I’ve never seen you do anything that civilised. Perhaps if you bothered to actually say something on interest then we wouldn’t treat you with the contempt you get. I notice for instance that you never actually address the points that I raise when I answer your points. You just move on to pointless insults on other matters. In fact you have never bothered to address the s92a debate at all in this discussion – why is that?

    Perhaps that is all you are capable of – attack other people without discussing anything? Seems to fit your behavior – looks like you have swallowed the C/T operations manual about how to be a mindless drone.
13. ieuan 13

    19 February 2009 at 11:15 pm

    ‘This is after all our site. If I bothered to look back I’d bet that there are many warnings to you previously. The database would pull them out. I seem to remember issuing a few to you early last year myself. There are no time limits.’

    Please, be my guest………….I think you will find your memory is rather faulty.

    As to the s92a debate, I can understand the concern about people being arbitrarily dropped by their ISP but the reaction of most (including this site) is somewhat hysterical.

    As I pointed out in my first comment it is really not that hard to avoid infringing copyright.
14. Andrew 14

    20 February 2009 at 12:17 am

    I 100% agree with lprent and IB on this one. ieuan, you state that “it is really not that hard to avoid infringing copyright”, but in reality I think you will find it is a lot harder than you think. Once material makes it onto the information super-highway it is impossible to police. You cannot control the internet and the information on it. You can try, but you will fail.

    The point of this post is the opposition to s92a that basically states that your ISP should remove your access to the internet after various accusations of copyright infringement. Not actually guilty of it, but only accused of it.

    I’m sorry but that is absolutely wrong and breaches my rights as a human being living in a free society. Extreme example, but that’s like saying I’m going to take your car off you because you have been accused of speeding by a member of the public. Not actually ticketed by a police officer.

    Sure, if I am convicted of multiple breaches of copyright by a court of law, then fine i’ll take my medicine. But for some Joe Blogs that happens to dislike me to come along and accuse me of copyright infringement only to have my internet cut off … THATS JUST WRONG!

    Your arguments are indefensible, i would suggest you stop.
15. Ag 15

    20 February 2009 at 12:57 am

    I don’t know why anyone is surprised. The representatives of copyright holders have never in my experience taken a measured approach to copyright law. Their attitude has been draconian and contrary to the public good.

    This law is their last feeble effort to get people to pay attention. New Zealand’s copyright law is asinine anyway, so I’ve spent most of my life ignoring it.
16. ieuan 16

    20 February 2009 at 8:59 am

    My understanding of the law is that it makes ISP’s adopt a policy where they can terminate peoples’ connections.

    There is little in the law about the process. Of course this should be clearer and better defined but in the vacuum this creates there has been a lot of hysterical nonsense.

    Ag: I’m sorry but I don’t accept the argument that copyright sucks so I’ll just ignore it, the speed limit sucks should I ignore that too?

    Council building regulations suck when building disabled showers, should I ignore those?

    Sure we need better copyright laws and these need to reflect the technology we have but they still need to balance the rights of the person creating the work and those who want to use it.

    I see little from those who want to create, license and protect a work only those who want to copy it and pay nothing for the privilege.

    It is time for a change in attitude.
17. vidiot 17

    20 February 2009 at 9:12 am

    lprent – my understanding was that only the holder of the copyright (or an authorised agent) could lodge a complaint with the ISP. The complaints can not be made by any joe bloggs in a vexatious manner.
18. lprent 18

    20 February 2009 at 10:05 am

    vidiot: Yeah? So show me that in the clause. The final one in the act has the following.

    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.

    Note that there is NO responsibility anywhere to find out if the person complaining is the rights holder. The nett obligation on the ISP’s is that they have a policy and that policy is implemented. What I’m arguing is that the simpliest and most effective policy cost-wise for an ISP is to do what Telstra-Clear are doing. Dump on accusation. The alternative is to increase costs to provide adjudication – something that isn’t possible on current margins.

    There is no penalty at all for people making vexatious complaints. This was mentioned in the bill, but was dumped when the clause was reinserted after the select committee dumped it.

    If you disagree and think otherwise, then tell me HOW your expectations are implemented in the act. I’m afraid that your HOPE isn’t recognized by the courts.

    To establish a set of principles, a ISP would have to be sued in civil court by someone they have disconnected. In 18 months or so and large amounts of cash later a decision may be reached. Basically that is a *lot* of hassle. It is easier to move the site hosting offshore where I don’t carry the risk.

    Now tell me why that isn’t the rational behaviour?
19. lprent 19

    20 February 2009 at 10:28 am

    i:

    There is little in the law about the process. Of course this should be clearer and better defined but in the vacuum this creates there has been a lot of hysterical nonsense.

    There is nothing in the act about process. This means that the whole thing will have to be tested in the courts. So what website wants to be the test case(s) and spend all of the money and time to do it. To clarify the acceptable process of this clause in civil court is going to take years, and we could probably only sue the ISP – not the complainant.

    Now do you see what we (the operators of sites) are ‘hysterical’. To define this law for the copyright holders benefit we pay – they or claimants proporting to be them don’t even enter into the litigation.

    My question is why would I or anyone bother staying in this jurisdiction? The site would run just as easily from Canada. Slightly higher latency and lower costs. At least they have a reasonably rational legal approach to this.

    To preserve your precious copyright, the local hosting industry has to die.
20. Felix 20

    20 February 2009 at 10:31 am

    Lynn,

    You’re correct about the shortcomings of s92, but your initial response to ieuan was that it’s ok to use copyright material without paying for because it’s too expensive.

    That’s not a legitimate argument for obvious reasons and it’s exactly the position that this (albeit misguided) legislation has been drafted to combat.
21. ieuan 21

    20 February 2009 at 10:49 am

    Thanks Felix, I feel like I’ve just grabbed a rottweiler by the testicles.
22. lprent 22

    20 February 2009 at 10:56 am

    Actually I didn’t say that.

    What I said was that the cost of getting images with a 100% verified provenance was too high (getty images, istock etc) and quoted prices to prove it.

    Then I said that these sources were of limited use anyway because most of the images we’d want to use have no easy to find provenance.

    For instance the karst image on Nuie that I used in a post last month about phosphate reserves. I spent an hour trying to figure out what the rights on that were. It may have origionally come out of a survey document by the UN – in which I could use it. The UN may have gotten the rights from someone else. But in the end looking for if I could use it or not was taking more time than writing the post.

    We do try to look at these issues. But there really isn’t any good 100% way apart from paying more for images than we do for bandwidth, and having a very restricted selection.

    Under the current regime, a rights holder could contact us, and we’d probably remove it. That is acceptable.

    Under the new regime a troll (or a politician or Crosby-Textor) could get our ISP to cut off the site without bothering to produce any proof that they have any rights at all.

    It is going to be simpler to move the site offshore – along with virtually every other website still operating out of this country.
23. lprent 23

    20 February 2009 at 11:08 am

    ieuan: Quick hint.

    If we’re not writing in bold at the bottom of your comments then you’re still getting talked to as a person rather than a troll. ie we’re not moderating we are discussing (doing both roles on the site is a bit tiresome)…

    I don’t ban people that I’m in discussion with. It is a form of protection – at least from me. However the moderators act independently.

    What I was getting annoyed about was that you weren’t looking at what my post was about. I accept copyright and I probably do more to be concerned about it than anyone else here. But this clause just leaves me wide open to anyone – not just the rights holders and there is essentially no recourse for any redress. I don’t think that I could even sue people making false accusations . That makes it a stupid law.

    That is what my post is about.
24. vidiot 24

    20 February 2009 at 11:31 am

    lprent – have a read what this says – http://www.vodafone.co.nz/personal/about/legal-stuff/copyright-amendment-act.jsp

    Make note of the words ‘copyright holder’ or ‘rights holder’ and then look at the sample take down notice that vodafone have, it clearly shows “Copyright owner or copyright owner’s authorised agent”

    and woot found it !!!

    92D Requirements for notice of infringement

    * A notice referred to in section 92C(3) must—
    “(a) contain the information prescribed by regulations made under this Act; and
    “(b) be signed by the copyright owner or the copyright owner’s duly authorised agent.

    So in laymans terms no troll or MP can be a prick and cause shit for you, unless of course they are the copyright holder or an authorised agent for that holder.
25. Felix 25

    20 February 2009 at 11:31 am

    Lynn,

    With all due respect,

    But there really isn’t any good 100% way apart from paying more for images than we do for bandwidth, and having a very restricted selection.

    is just another way of saying it’s too expensive (poor value for money).
26. lprent 26

    20 February 2009 at 11:50 am

    Felix: Sure, and I’d support anything that gave us a search-able registry of the copyrights. Which would be the way to reduce those charges. Of course that would require a registration of copyrights in the same manner as patents, and it would be pretty expensive (in the same way as patents) for the rights holders. But hey, it’d be cheaper and easier for me than what I’d have to do now..

    From my perspective I’d at least have a chance at finding out the owner of rights on the images I want to use… I’d support a registration system.

    As far as I can see this whole issue is about making it as cheap and easy for the rights holders as possible, and bugger everyone else. That isn’t equitable.
27. lprent 27

    20 February 2009 at 12:00 pm

    vidiot: Toothless…

    All I have to do is to say that I hold the rights – it doesn’t say that I have to provide proof.

    That was where it blew up when the TCF proposals died..

    From Russell Brown’s post

    It is quite proper to seek efficient ways of adjudicating legal disputes, but the problem with Section 92(A) is that it places the adjudication of a legal dispute either in the hands of parties who are not competent to make such decisions (ISPs and telecommunications companies), or (in the approach endorsed by RIANZ’ Campbell Smith) in the hands of one party to the dispute. To say this isn’t ideal is putting it mildly.

    Essentially RIANZ’s position was that rights holders should not have to present any proof of copyright. It would involve them in effort. They’d prefer that the ISP’s took their word. Problem is that ISP’s are not experts – they’d also have to take the word of every other tom-dick-and-harry.

    If you read Jordan Carter or David Farrar’s posts, the sense of frustration shows through strongly – both are on INZ who has also been trying to get a protocol through for this crap clause.
28. lprent 28

    20 February 2009 at 12:11 pm

    My view is that to make this work, they’ll have to set up a separate tribunal to make the decision. That would require considerable funding from somewhere. I’d suggest the ISP’s and bodies like RIANZ, booksellers etc. The expense would have to be considerable to handle investigations in a expeditious manner.

    Of course I’d probably still move offshore. The differential cost between NZ and elsewhere for hosting a site would become too high.

    The alternative is that providing incorrect information to the ISP’s is a criminal matter – ie something akin to fraud. Disputes about copyright should be handed to the police for investigation. At least they have the capability to develop expertise

    I’d suggest that they retask the TAU and SIG to that purpose – they’d be more use there.
29. Felix 29

    20 February 2009 at 12:22 pm

    Lynn,

    The searchable registry model seems unnecessarily complicated and fractured – I think the model to look at is one of blanket licensing, along the lines developed for performing rights.
30. lprent 30

    20 February 2009 at 12:34 pm

    That would be fine. It just has to be something that could be done in the 10-15 mins I have for searching out a suitable image and deploying it.

    That means that we pay a standard monthly general levy to use whatever material we want under a license. The costs should be low (a LOT lower than getty or istock or their ilk) because it will have economies of scale. It should cost a lot less than the network hosting because we really don’t use many images. But the range of images has to be far far wider and include free to use images.

    Have a look at google images way of doing it. I want that copyright statement to be at least 50% either yes or no. The current 99% ‘maybe’ is unacceptable
31. ieuan 31

    20 February 2009 at 1:30 pm

    Iprent – great to see that you have moved from ‘we’re moving to Canada’ because this thing is draconian to ‘how can we make this work’?

    A couple of suggestions:

    iStock photos are available from around $1US each on a pay as you go basis (rather than a monthly subscription).

    Wikipedia only uses public domain or free to use images (but I am sure you know this) and they are available for general use (in most cases).

    And of course – if you can’t get the image you want without infringing someone’s copyright don’t use it, honestly most of us come here to read the text and not look at the pictures.

    As for graphs – if you have to, redraw them, if the info is in the public domain you can do what you want with it.

    And finally – really if the issue is cost why aren’t you guys asking for donations from readers (like Wikipedia did)?
32. lprent 32

    20 February 2009 at 2:39 pm

    Nope I’m still likely to move the sites hosting to Canada or elsewhere. I have an aversion to uncontrollable risk levels. We do use a high proportion of wikipedia images. We also use a high proportion of non-copyright materials – however these are time expensive to figure out. But there is a proportion of questionable images on the site. It is almost impossible to be a 100% sure in the current copyright environment.

    Reason why I don’t want to do the peicemeal – because my time is pretty precious, at least that is what my employers pay. My other voluntary activities (like this) are much the same. The same thing applies to every one else writing posts here. We’re always looking at how to reduce time.

    The problem with a piece meal approach is that I don’t use a credit card for micro transactions, and I prefer to pay on a subscription model because the charges require less work on my part. We could have put this site on a donation model (or the advertising one I’m testing now) a long time ago. But the problem is that both take more time than normally I have available. The only reason that I’m considering it is because I’m assured that it won’t chew anymore time. But I figure I’ll just keep paying anyway, but hunt for a cheaper less risky hosting offshore.

    It has been cheaper for me to pay the sites running costs out of my pay, because it takes only a few minutes per month. That is why customers like contract rates, subscription models, etc because it consumes less time.

    Also explains why the fortunes of the microtransaction model are still as sluggish as hell. Look at the Puhio motorway…
33. Felix 33

    20 February 2009 at 3:04 pm

    Lynn,

    It is almost impossible to be a 100% sure in the current copyright environment.

    Not at all. The way to be 100% sure is to use only your own material. Put that shiny new iPhone to use 🙂

    You can point out all the ways in which it can be time consuming, difficult, inconvenient or expensive to stay within the law but ultimately you don’t have to use any copyright material at all – it’s entirely your choice to do so.
34. lprent 34

    20 February 2009 at 4:19 pm

    Felix: I think that a trip to Nuie to photo the krast fields for the phosphate post would have been a tad more time consuming.

    I really wanted that picture to show the costs of the phosphate trade to the suppliers. I remember seeing it 30 years ago.
35. Felix 35

    20 February 2009 at 5:03 pm

    Yes of course, but the point I’m making is that you don’t have to use it at all – even though you “really wanted” to.

    I’m not trying to pretend that we have an ideal system for managing copyright and I’m not supportive of the “guilt by accusation” aspect of the proposed changes – as I mentioned above I think there’s probably a better solution closer to some sort of blanket license – but I don’t see how just ignoring the law because it doesn’t suit you is a defensible position.

    I’m not saying that there aren’t defensible reasons for ignoring the law, just that inconvenience isn’t one of them. And arguing that it is only gives weight to the RIANZs of the world.
36. lprent 36

    20 February 2009 at 5:55 pm

    The way that the law is set up at present on copyright essentially states that every person using something has to figure out who owns it.

    That would probably be fine prior to the net, and if it’d actually had a copyright notice on it. Even then you couldn’t be sure that the rights of the creator were being maintained – eg counterfeiting and plagiarism. So the best that could have ever been in the courts would have been a duty of care to make as certain as you could be. ie some kind of reasonable person test.

    With the net – what is the reasonable persons test? Anyone can strip identifying marks in seconds including watermarks and tags, claim it as their work, and say that it free for any use. Most of the time the latter two aren’t present either.

    What you’re suggesting is that it is only what you produce yourself. Kind of ignores the whole development of economic systems since the hunter gatherer days.

    What ieuan is suggesting is that we should pay middlemen to do that work, but on some kind of piecework approach. Again ignoring the changes in economic models over the last couple of centuries and the cost of transactions.

    The best one would be some kind of subscription/performance license. But expecting artists to work cooperatively together on a economic system is not all that likely? Of course pigs could fly…

    However what I will not accept is a presumption of guilt that is the basis of s92(a) because it abrogates the idea of any reasonable person test. It is easier to move jurisdictions if these dickheads can’t figure out a better test than guilt by accusation.
37. lprent 37

    20 February 2009 at 6:14 pm

    I could disable every image on the site – with a message blaming it on RIANZ and whoever else are acting like idiots. Could make a major google bomb out of it…. That is worth a post…

    Of course we (net programmers) could always just treat this as a classic censorship problem. I could shift every image offshore and merely refer to them with URL’s. Then it is the client machine that is serving up the image from an offshore site. Effectively that is the youtube solution I’d bet that there are image servers readily available.

    Similarly proxy solutions, moving servers, etc…

    Time for some widespread civil disobedience ??
38. DeeDub 38

    20 February 2009 at 6:57 pm

    RIANZ can suck my d**k.

    And I say this as an artist thrice nominated at their Music Awards since 1990.

    They’ve got it sooooooooooo wrong it’s not even funny.
39. Felix 39

    21 February 2009 at 3:22 am

    Lynn,

    The best one would be some kind of subscription/performance license. But expecting artists to work cooperatively together on a economic system is not all that likely? Of course pigs could fly

    It works pretty well for performing rights in music, pretty much globally and fairly seamlessly. Of course there are always people bitching about having to pay the licensing fees but fuck em if they’re too ignorant to realise they’re using someone else’s work.

    DeeDub, I don’t think you want Smith anywhere near your “d**k” but I second the sentiment. So very, very wrong.

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1. Web/community at The Standard 2.02: posted on 19 February 2009 at 8:26 pm

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