mundens: Picture of Brad Pitt playing Tyler  Durden from Fight Club. My Hero (Default)
[personal profile] mundens
Cameron McKechnie pointed out in a Facebook comment on Will Marshall's journal :
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 :

Creative Commons Licence
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)
ewen: (Default)
From: [personal profile] ewen
On the assumption that you're not merely being facetious about this, the law -- at least at the point that it's getting to court cases -- is interpreted by various rules of interpretation including, amongst others, what a reasonable person would understand the words to mean and what the legislative history indicates that the words were intended to mean. Since I don't think any reasonable person would believe the clause was intended to be construed in such a way that "simultaneous" related to multiple users being able to download the material at once, as opposed to users both uploading and downloading at the same time -- and since the legislative history clearly indicates this was aimed at those Evil Pirates Using Bittorrent (tm) -- I doubt the interpretation you are suggesting would be given more than a moments thought before being dismissed.

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.


Re: Web browsing

Date: 2011-05-02 04:28 am (UTC)
ewen: (Default)
From: [personal profile] ewen
I don't have the time to write a legal essay in response (suffice to say I do not believe your interpretation is that of a "reasonable person" as you claim). However I will note in passing that the implied copyright license (to copy, eg, an image linked to a web page that you are viewing) is only as effective as the rights that the person giving you that license has. If the person giving you the license owns the copyright, then you've been give a good (implied) license; if they own nothing, then you're pirating it as well as them (although unknowingly). If you're download from a "grey market" file sharing service it becomes pretty hard to deny that you "didn't know" you didn't have a valid license, which really won't count in your favour.

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.


Date: 2011-05-03 07:19 am (UTC)
tcpip: (Default)
From: [personal profile] tcpip
You are absolutely correct on this.

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.


mundens: Picture of Brad Pitt playing Tyler  Durden from Fight Club. My Hero (Default)

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