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Three Strikes Bill too wet and woolly, say Kiwi lawyers

A ban should mean a ban

Internet Security Threat Report 2014

New Zealand's Parliament met to discuss the pending Three Strikes legislation this week, with the Law Society chipping in. The amendment is too vague, onerous on the ISPs, and too gentle on serial freetards, the Society's government liaison Clive Elliott says.

While lawyers can typically be expected to favour legislative solutions, this is quite unusual. Even copyright holders haven't proposed infringers are served with a total exclusion. Elliott's view is tempered by the view that copyright holders should do much more of the heavy lifting, as the legislation leaves ISPs with too much administrative overhead.

Elliott rejected arguments about digital exclusion, telling Computerworld NZ that you can still pay your taxes and do your accounts using snail mail.

The Society is also concerned that copyright tribunals don't allow individuals appealing to be represented by lawyers - while copyright holders will typically use their in-house lawyers. That's not fair: either allow them all to have professional representation, or ban the lawyers altogether, the Society argues.

On the other hand, the Law Society suggests a ban really should mean a ban. The law proposes a six month suspension following a third infringement notification - literally the "Third Strike".

"During this period a subscriber can easily open an account with another ISP and immediately continue illegal file sharing. There should be a power to allow the Court to order that the account holder cannot open an account with another ISP during the period of the suspension."

Not every country sees that as essential.

Traffic cops

While a wave of infringement legislation is being implemented in different countries, the Kiwi legislation is unusual in one way - it proposes ISPs maintain traffic logs:

"Every ISP must retain, for a minimum of 40 days, information on the use of the Internet by each account holder."

The Copyright Amendment Bill before Parliament proposes that on the third notification infringers will receive a fine up to $15,000 or a six month suspension from the ISP. Warning notices are "valid" for up to nine months, after which they expire, a bit like traffic penalty points here. After a six month suspension has been served, the infringer able to continue their contract with the ISP. Appeals tribunals will be set up to resolve disputes.

Ireland's courts have opted for the simplest approach: regarding infringement as a simple breach of contract, and copyright holders can compel a contract to be cancelled within six weeks, from start to finish. There's no enabling legislation, no apparatus for appeal, or for monitoring.

At the other end of the spectrum is France, which in a typically bureaucratic approach has a new enforcement body (Hadopi), and a blacklist database of serial infringers, a sort of "Freetards Register". The first emails are due to be sent out in France next month.

The UK passed enabling legislation this Spring, with any sanctions left to Ofcom, if it the level of infringement fails to decline.

New Zealand's Parliament will discuss the legislation in October. You can read the text of the Bill here and more background here. ®

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