Leaked letter reveals recording industry's copyright stance

The Recording Industry Association of New Zealand (RIANZ) wants copyright holders to determine copyright disputes when implementing S92a of New Zealand's controversial new copyright laws.

Further, RIANZ has argued the mechanism for subscriber challenges proposed in a draft implementation code -- internet users being able to issue a counter-notice if they're accused infringing copyright -- is "not workable"."

RIANZ' positions on the draft code are contained in a leaked letter, dated February 13, from RIANZ CEO Campbell Smith to the Telecommunications Carriers' Forum, which produced the draft code.

Judging by the letter, the two sides have plenty of work left to do to reach agreement on a final Code of Practice, despite assurances last week from Minister of Commerce Simon Power that the two prominent rights holder organisations are "confident" that a code will be finalised.

The TCF code of practice will be the guiding document for telcos and ISPs, on how to manage the controversial Section 92a that states "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" after February 28, when it comes into force.

The code is still in draft form going through public consultation. According to the TCF, the code is expected to be finalised in early March.

Smith's letter starts with a simple statement: "We cannot support it in its present form" and goes on to list a number of problem areas in the code for RIANZ.

Stating the mechanism risks dragging out "the termination process at the customer's will," RIANZ instead wants users to be required to provide sufficient evidence as to why they believe the alleged infringement didn't occur via the internet account in question and/or why there is no copyright infringement of the file being downloaded.

ISPs should then determine technical issues and rights holders copyright ones.

Second, RIANZ opposes having to pay for processing copyright infringement notices and indemnifying ISPs for any costs and liabilities. This is because rights holders already bear the great bulk of costs in the termination process as they detect infringements, gather evidence and send that to ISPs.

Third, RIANZ does not want the notices sent out to users accused of infringement to include evidence that would be admissible in court. The pre-approval process in the draft code for eligible rights holders makes this unnecessary, says RIANZ.

Furthermore, RIANZ says its evidence is "highly reliable, well-tested and accepted worldwide". The evidence is synched to a trusted atomic time source, and based on ICANN (APNIC) information on the allocation of IP address spaces, RIANZ continues.

Mistakes as to which ISP is contacted could only occur if the information provided by ISPs to ICANN (APNIC) is incorrect or hasn't been updated, RIANZ claims and goes on to say that to date, none of the evidence it has provided has been successfully challenged in court anywhere in the world.

According to RIANZ, all that is required for the pre-approval process for eligible rights holders is ownership of the copyright of the work in question, that the agent is duly authorised and that a reliable detection method for finding infringement is used.

The time frame for the "overall termination process has to be considerably shortened" too, RIANZ demands. Two education notices and a final termination notice is all that's required, it says.

If a user wants to dispute the education notices, there's a time limit of one calendar month for the first one, and five business days for any subsequent ones.

ISPs should not be divided into two categories either, RIANZ believes. The TCF code has two sub-categories of ISPs, namely downstream ones, and essential service providers, but RIANZ says these are "unnecessary and unprecedented." Having these will serve only to add complexity and delay, providing excuses for irresponsible ISPs not to take action, RIANZ says, and demands they're deleted from the code.

Attached to the letter from RIANZ is another letter, from A. Robert Pisano, of the Motion Picture Association of Sherman Oaks, California.

Pisano writes that the MPA acknowledges efforts by the TCF to develop a reasonable policy for all parties to comply with Section 92 of the Copyright Act 1994 [sic] but says it isn't aware of any country where a "per notice" fee is being charged.

Such a fee is "unacceptable" to the MPA and its member companies, Pisano writes, and it doesn't support it.

The MPA has developed and are testing and publishing "a set of robust standards" for infringement and infringer verification, and also for the communication of notice and evidence data, Pisano states. It intends to ensure that vendors contracted to contribute scanning and related services to its programmes adhere to those.

Speaking to Computerworldon the RIANZ letter, TCF CEO Ralph Chivers says "much has happened since the letter was received" and that the parties are working constructively on reaching a solution.

One issue that RIANZ and APRA are currently discussing with the TCF is the establishment of an independent third party to consider objections and adjudication if necessary.

RIANZ did not return calls seeking comment.

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