US file-sharing agreement allows six strikes

UPDATE: Minister Simon Power says there are no plans to revisit legislation in New Zealand

Internet service providers and major entertainment companies and industry associations in the US have come to an agreement that allows file-sharing copyright infringers up to six “strikes” before facing any penalty. This is considerably greater latitude than the “three strikes” previously pushed by the music and movie lobbies and now enshrined in New Zealand’s Copyright (Infringing File-Sharing) Act.

Commerce Minister Simon Power, the minister responsible for the Infringing File-Sharing Act, holds out no hope of the US move sparking another change in the long-fought New Zealand legislation, with its elaborate processes for notifying and eventually punishing infringing users.

"There are definitely no plans to revisit our legislation,” Power says. “Our regime hasn't even started yet. It went through every test and forum it could have been through over more than two years, and I'm satisfied with the result. “I'm confident it'll discourage illegal file sharing and provide more effective measures to help creative industries enforce their copyright,” he adds. “It's expected the issue will be reviewed in 2013, coinciding with the five-year review of the digital copyright amendments that were passed in 2008.”

Key pieces of the NZ regime were advanced today with the publication of the fee that ISPs are allowed to charge for their role in handling notices of alleged infringements – a limit of $25 has been set – and the charge ($200) for taking a final allegation of threefold infringement to the Copyright Tribunal.

Cabinet has also approved the detail of the information to be set out on a notice of infringement.

The announcement of the US agreement places a good deal of emphasis on educating the user who may be inadvertently infringing and on giving account-holders the right to claim lack of fault and take measures to discourage infringers among their family or customers before being held to account themselves.

The position of such account holders under the NZ legislation has been much discussed with reference to libraries’ provision of internet access and the vulnerability of public wi-fi providers.

“Consumers have a right to know if their broadband account is being used for illegal online content theft, or if their own online activity infringes on copyright rules – inadvertently or otherwise – so that they can correct that activity,” said James Assey, executive vice president of the National Cable & Telecommunications Association (NCTA), which worked in an advisory capacity with ISPs to help complete the agreement. “We are confident that, once informed that content theft is taking place on their accounts, the great majority of broadband subscribers will take steps to stop it. That’s why the educational nature of this initiative is so critical.”

Integral to the plan is a Centre for Copyright Information (CCI), whose website includes fact sheets on the regime and material on the alleged scale of harm caused to the US economy by copyright infringement.

This is a major turnaround by the entertainment industries, which were seen as the moving force behind the attempt to impose a three-strikes regime under the Anti-Counterfeiting Trade Agreement (ACTA). It effectively leaves New Zealand with a stricter regime than the US.

Parties to the new Copyright Alert System include the Motion Picture Association of America and its members: Walt Disney Studios Motion Pictures; Paramount Pictures; Sony Pictures Entertainment; Twentieth Century Fox; Universal City Studios; and Warner Brothers; The Recording Industry Association of America and RIAA members Universal, Sony Music Recording, Warner Music Group and EMI Music North America.

The Independent Film and Television Alliance, representing independent producers & distributors of film & television programming, is also a party to the new system, as is A2IM, the American Association of Independent Music, representing 283 music label members, small and medium-sized businesses located across the US.

On the ISP side the agreement embraces AT&T, Cablevision, Comcast, Time Warner Cable, and Verizon.

There are no new laws or regulations established as a part of the voluntary agreement, announcement material says – though copyright infringement remains an illegal act. In particular, the announcement emphasises, there is no threat to terminate an infringing subscriber’s internet account.

However, the agreement permits “mitigation measures” beginning with the fifth or sixth alert. These may include “temporary reductions of Internet speeds, redirection to a landing page until the subscriber contacts the ISP to discuss the matter or reviews and responds to some educational information about copyright, or other measures that the ISP may deem necessary to help resolve the matter,” says the CCI website.

The US announcement acknowledges the broker role of New York governor Andrew Cuomo in the agreement. In 2008, Cuomo was instrumental in persuading ISPs to stop giving access to Usenet newsgroups which purportedly contained child pornography.

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