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May 2, 2011 | by  | in Opinion | [ssba]

Infringing File Sharing or Infringing Democracy?

Over the mid-semester break, news of Dr Brash’s intentions to replace Rodney Hide as leader of the ACT party, and Defence Minister Wayne Mapp’s admission that the SAS had been involved in a mission targeting insurgents responsible for Lieutenant Tim O’Donnell’s death, have been at the forefront of political discussion. However, the passing of the Copyright (Infringing File Sharing) Amendment Bill under urgency at the end of last term raises some significant issues.

Informally dubbed the ‘Skynet Law’—after New Plymouth MP Jonathan Young’s awkward comparison of the Internet to Skynet, the artificial intelligence network in the Terminator movies—the new law imposes a number of measures to deter file-sharing of copy
righted materials.

Set to come into force on September 1, the ‘Skynet Law’ sets into place a ‘three-strikes’ regime, using one of the current Government’s two most adored phrases, (the other being ‘step-change’). Copyright owners can inform Internet Service Providers (ISPs) that copyright has been breached, and the ISPs subsequently send warnings out to customers. After three notices without action from the user, a claim can be made to the Copyright Tribunal who has the power to impose a penalty of up to $15,000 on the user.

If, after two years, the Commerce Minister decides that the law is ineffective as it stands, ‘termination’ (a six month suspension), can be initiated through the activation of an Order-In-Council. Under the subsequent tougher regime, cases would be referred to the District Court who could enforce the six-month suspensions.

Interestingly, the ‘Skynet Law’ won broad support across Parliament with only the Greens alongside independents Chris Carter and Hone Harawira voting against the bill. Support came despite general misunderstandings throughout the House, about what file sharing actually entails.

The previous Labour Government has passed similar legislation, but their much-resented ‘Section 92a’ law was repealed by the current National Government following significant protest over the heavy-handedness and dubious efficacy of the law. Labour MP Clare Curran has insisted that her party’s support comes simply to facilitate a compromise in the replacement legislation that saw the aforementioned Order-In-Council provision included, in the face of the “Government’s bottom line…to have termination in the Bill.”

The ‘Skynet Law’ is admittedly remarkably better than Labour’s previous failure, but whether it is work-able remains questionable.’s Andrea Vance has highlighted a number of issues, concerning the problems surrounding shared Internet accounts, and the fact that in general, people aren’t limited to one Internet connection. “Finding ways of dodging the punishment is not too hard to imagine from someone who has managed to ignore all the warnings and avoid paying a $15,000 fine.”

Furthermore, it’s arguable that with the centrality of the Internet to the functioning of today’s society, termination seems like an extreme punishment for copyright infringement.

The other key issue raised through the passage of the ‘Skynet Law’, goes to process.

Ironically, its passing came on the same day that Labour MP Grant Robertson and right-wing blogger David Farrar united in protest over the Government’s consistent reversion to the use of urgency.

Urgency allows the Government to extend the sitting hours of Parliament in order to see a higher volume of legislation passed, as well as enabling the Government to bypass important parts of the legislative process. While urgency is sometimes warranted, the current National Government is using the measure excessively. In its first two years, 17 laws have been pushed through without public consultation, compared with the four or five bills in each term of the previous Labour government.

Interestingly, the ‘Skynet Law’ was thoroughly analyzed by the Select Committee, but having waited for a second reading since November, the bill was suddenly rushed through the second reading, Committee of the Whole House, and third reading in one sitting, completely undermining what had until then, been the transparent progression of a controversial piece of legislation.

Recognizing the role urgency plays, but concerned with its overuse, Robertson has suggested that a 75 percent vote in Parliament should be required before the Select Committee stage can be missed.

It’s unlikely such a provision will be instituted in the near future however, and no doubt the confidence of the current Government will continue to see these consistent subversions of democratic process.


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