Concerns over new copyright laws

Imagine that the new season of your favourite television show has just started screening in the United States but you know it will be at least a year - maybe more – until it screens in New Zealand. If at all.

You have a few choices: Wait patiently until one of the New Zealand networks deigns to air the show here or spend cash to buy or rent the DVD, if available.

Or you can head online, find a website that lets you illegally download the programme, then watch it.

That's what many New Zealand television and movie fans do. They illegally download HBO's fantastic new series Game of Thrones or the new seasons of Curb Your Enthusiasm. It's estimated that 10,000 copyrighted items are downloaded in New Zealand every day.

But come Thursday, things suddenly change and new laws passed in April means owners of copyrighted material can come down harder on offenders.

The new legislation is called the Copyright (Infringing File Sharing) Amendment Act 2011 and it amends the Copyright Act 1994 to provide owners of copyrighted works such as movies, TV shows and music an easier way to penalise people found downloading copyrighted material using online file-sharing services such as Gnutella, BitTorrent, FrostWire, LimeWire and Vuze.

Those programs use what is called a peer-to-peer (P2P) network – two or more computers connected together, sharing resources, without going through a central server computer.

The act, branded the "three-strikes law" by many commentators, works like this: If you're suspected of downloading copyrighted material from a peer-to-peer site, you'll get an notice from your internet service provider (ISP) that you have been detected downloading copyrighted material. If you continue to download illegally, the next notice you'll receive from your ISP will be a warning notice –stop downloading copyrighted material or else! The third notice is the enforcement notice. It allows the copyright owner to take you to the Copyright Tribunal. If found guilty, you could be fined as little as $275 or up to $15,000, payable to the copyright owner. You can challenge any notice at any time.

Although the act doesn't come into force until Thursday, copyright owners started monitoring under the act on August 11.

The Ministry of Economic Development says the law doesn't apply to direct downloads, video/music streaming websites such as YouTube or online file lockers.

"What this means is that watching videos on YouTube or via blinkx, streaming music from Grooveshark, and downloading from online file lockers like MediaFire and 4shared will not be subject to the changes," said InternetNZ's chief executive Vikram Kumar.

But where things get murky is that it's the person – or company – that owns the internet connection that is liable for any infringement, not the downloader.

Paul Brislen, chief executive of the Telecommunications Users Association of New Zealand (Tuanz), said while the act is enforceable, it was a "complete waste of time and money" that supported an antiquated business model.

"This is about an old business model that does not work today. The old model was that if I had a physical film to distribute worldwide I'd stagger the rollout from country to country. But now distribution is through file transfer.

"All the hype about the film has already come to New Zealand through marketing but the company says, `We'll release the movie in six months time'.

"People here say, 'Stuff you. I'll get it online for free'."

Brislen said New Zealand was served poorly by both free-to-air and paid TV channels, "especially when networks drop high-rating shows partway through the season or the shows just don't make it here". A recent example is TV show Justified which was dropped from TV One's line just a few weeks after it started screening, replaced by a reality TV show about highway police in Britain. Justified returns this Wednesday, but at 11pm.

Brislen expects the first infringement notices to start appearing in letter boxes from early November because of the time it takes to work through the stringent procedure rights holders had to go through to get ISPs to issue infringement notices. He expected that copyright holders would most likely target people who downloaded a lot of copyrighted material. But there are American cases where copyright holders had "vigorously targeted grandmothers whose grandchildren had been downloading stuff". In the early months, ISPs could send between 5000 and 10,000 infringement notices a month.

Copyright holders have to follow a specific 13-criteria process before an ISP will issue a notice, Brislen said, including what time an illegal download was made (down to the second), and each notice would cost the rights holders $25 to process, but Brislen had been told that it could actually cost the ISP as much as $40 per notice.

He understood that while the act would target only torrent downloads "there is nothing in the act that says they won't target any form of file sharing".

There was also a huge debate over whether the act will hurt free wi-fi provided by places such as McDonald's, public libraries and cafes.

"They are stuck and are legally responsible for what goes on over their network. Can they identify the people using their free network over wi-fi? Probably not. You might find a lot of places that provide free wi-fi might decide not to do so. If a public library, for instance, receives three infringement notices for a variety of offences they will just stop providing free wi-fi," he says.

Brislen said the power of the internet was such that people could decide when they wanted to watch something and it made no sense for a television network to buy content then sit on it for months or years, as currently happens. "The days of TV networks being able to decide when viewers watch something are over. People will pay for content if they have the choice and they can get it."

Brislen said Netflix, a US subscription-based service that lets users download and rent movies and TV shows, accounted for around 33 per cent of all data traffic in the United States and was expected to hit 50 per cent by year's end.

"Netflix really is the answer to this problem. This amendment won't make a blind bit of difference but here's a radical idea: Let people pay for the content they want.

"Give us Netflix or Hulu (a similar service). People will pay to watch good content online. Give people what they want," said Brislen.

A variety of websites are sprouting up offering helpful advice over the new amendment but none of them condone illegal file sharing and aren't offering ways for people to work around the new law.

One of the most helpful I've seen is, which has practical advice for people on what the law is about and what it means for people. There's also a comprehensive FAQ, which is well worth a read.

The Press