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mundensCameron McKechnie pointed out in a Facebook comment on Will Marshall's journal :
I thought surely this can't be right ? Surely the bill would define file-sharing more accurately?
But no. Here's the definition of file sharing from the relevant section 122A :
and
The internet is itself a "network" that "enables the simultaneous sharing of material between multiple users", a web server is also an "application" that "enables the simultaneous sharing of material between multiple users", and in order to read a web page, the web browser must "download" the page. There is no clause that says the "application" in question must be on the infringer's machine, or that the term "network" excludes the web or the internet itself.
This means any viewing of web pages that do not explicitly give the user permission to copy them automatically constitutes an infringement under this poorly draughted law.
There doesn't even need to be an explicit copyright statement on the page to trigger this, as under the Berne convention copyright automatically applies. In fact, only an explicit statement of permisison to copy, in one form or another, will make your web content legally readable by the masses. So, seeing as I'm not a bastard :
NZ File-sharing Law Makes Using Your Browser An Infringement
is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.
There are no further clarifications or restrictions of these statements in the rest of the bill. Probably because the representatives of commercial rights-holder organizations didn't want to be restricted by any more specific definitions that would later become obsolete. But in their desire to have maximum coverage, they have effectively created a law that is too general to ever be workable, and one which can be used against them, because in order for them to discover a file-sharing infringement, they will have to go onto the web and infringe the law themselves.
Yes that's right viewing a web page breaks this copy right law, let alone any activity that results in a client side cache like browsers and etc. Lets take it the other way and build a web server that stores the MAC address and starting going after anyone that looks at it (company or individual) and get sure there's several and its all legal and sweet as rain by the new copyright law about to become effective. Legal to then Copyright Trolling in New Zealand and sure bets the hell out of Patent Trolling like they have in the US.
I thought surely this can't be right ? Surely the bill would define file-sharing more accurately?
But no. Here's the definition of file sharing from the relevant section 122A :
“file sharing is where—
“(a) material is uploaded via, or downloaded from, the Internet using an application or network that enables the simultaneous sharing of material between multiple users; and
“(b) uploading and downloading may, but need not, occur at the same time
“infringement means an incidence of file sharing that involves the infringement of copyright in a work, or part of a work, by a user
The internet is itself a "network" that "enables the simultaneous sharing of material between multiple users", a web server is also an "application" that "enables the simultaneous sharing of material between multiple users", and in order to read a web page, the web browser must "download" the page. There is no clause that says the "application" in question must be on the infringer's machine, or that the term "network" excludes the web or the internet itself.
This means any viewing of web pages that do not explicitly give the user permission to copy them automatically constitutes an infringement under this poorly draughted law.
There doesn't even need to be an explicit copyright statement on the page to trigger this, as under the Berne convention copyright automatically applies. In fact, only an explicit statement of permisison to copy, in one form or another, will make your web content legally readable by the masses. So, seeing as I'm not a bastard :
NZ File-sharing Law Makes Using Your Browser An Infringement
is licensed under a Creative Commons Attribution-ShareAlike 3.0 Unported License.
There are no further clarifications or restrictions of these statements in the rest of the bill. Probably because the representatives of commercial rights-holder organizations didn't want to be restricted by any more specific definitions that would later become obsolete. But in their desire to have maximum coverage, they have effectively created a law that is too general to ever be workable, and one which can be used against them, because in order for them to discover a file-sharing infringement, they will have to go onto the web and infringe the law themselves.
Web browsing
Date: 2011-05-02 03:02 am (UTC)Besides for the last decade or so it's been considered that one is given an implied license to copy for the purpose of display in the web page the various things the webserver offers up, at which point you have a copyright license and there isn't infringment. (The same construction is applied to web caching too, and has been for over a decade.)
Honestly as unfortunate as this law is, it won't do anyone's cause any good to offer up such easily dismissed arguments against it.
Ewen
Re: Web browsing
Date: 2011-05-02 04:17 am (UTC)As neither of these sets of words or clauses actually have any existing relevant legislative history, that history will be defined by interpretations made now, such as mine, should anyone wish to advance it in court, so appeals to legislative history do not have any bearing on this issue.
Note that the wording of 122A b) explicitly states that uploading and downloading do not need to occur at the same time, and that therefore your interpretation of the use of the word "simultaneous" in your second sentence is explicitly stated as NOT intended by section 122A a).
While the "application" may be able to upload simultaneously it is not NECCESSARY for a file to have been uploaded to claim an infringement.
This is exactly what the rights-holder's representatives who argued for this law DID intend with this wording, as they don't want to need evidence of uploading as well as downloading in order to prosecute, they just want to claim you downloaded it.
Anyway, both browsers and web servers are quite capable of downloading and uploading simultaneously to multiple users, so actually both of them meet the requirements of your interpretation of clause a) as well.
The second argument works against any rights-holder, for if, as you say, I have been given an implied license to copy web pages, then I also must have an implied license to copy any images, sound, or video files attached to those web pages, or I would be breaking the law when i went to, say, the TVNZ site or any other site that includes video or audio files.
As far as copyright law is concerned there is no legal difference between a web page and an mp3 file, for example, as they both are copyright. As far as this section of the law is concerned, they are both files, and they are both available on the internet. Practically there's no difference either, as they are both strings of bits.
Therefore admitting any "implied license" argument as valid means that downloading ANY file from the web cannot be made illegal under this law, as I have an "implied license" to copy any file I run into on the internet, purely because it is there, and THAT clearly is NOT the intent of this law, therefore, the "implied license" argument is invalid, unless you want to use the argument to overturn the whole of section 122, which I'm sure a rights holder arguing against me would not want to do.
Based on these arguments I contend any reasonble person must make the same interpretation of section 122A as I do.
Obviously a judge would have to make a decision on this, but I believe have been able to cast doubt on both of your attempts to say my interpretation of the law is wrong, and I'm sure someone better versed in legal etiquette could do better than I.
Re: Web browsing
Date: 2011-05-02 04:28 am (UTC)I will grant you that the law is poorly drafted (surprise!), but that is true of basically all law. For centuries judges have muddled through and generally made sensible interpretations of things that could, at a stretch, be interpreted in an nonsensical way. I've no reason to doubt this law will be any different.
Ewen
no subject
Date: 2011-05-03 07:19 am (UTC)Under the Berne convention copyright automatically applies, unless explicitly stated otherwise.
In order to read a web page, the web browser must "download" the page.
The legislation is stupid in principle, stupid in drafting, stupid in practice.
New Zealand has declared accessing the web is mostly illegal. Can't wait for that one to be tried in court.